













<r . 



' ^0 




''^^ *.,■.• 



«l*. * • - 








' >. 



A^ ^ •'■• .V .. ^ •-* -AT 



•: ^-./ 





















J.'. ^o V^ 



^-^Z 




-^^0^ 




• cV ^ 



<> *'T7.' .0 



9 ti 




^ *: 






^°^*.. V 

















%/ r 



% t*: 

^--o^ 



■■* .c. 




% 



,*^ 






























'OK 



>, ' • » A 










v^ .j:i^%/"^. 










'fe. * 




v^o^ 



"^ '"^" -^ 













.0 %,^^ /' 



v^ •Jj;^ 

















.; -^^0^ 



\^ .. % ••• ^° ^ •" aT 





*. .*' .:^^:.. '.. « '.'iSlK-. '**„.**" . 






^^ ' • , n - ^^' 0^_ ♦ . « o ' ^0" 











^^•nK 






'^0-%^' 



* aV ^ . 

















• « A'^ 










0" ..IV. > V ..ii;L'»/«; 



JP"*. 



•^ .1* 






<y « * • «. 






^•. %,** 








* o 












^ ♦!••' ^O 












V' ./ 


















%/ / 



;^^^^% -.IP/. /\ 



^'.\ /..i^.*°o /.i^'\ oo*/i.:^.*<^ 






v^''..i:;^'»*cv 






^'• ^♦'^^^ ^:wim: «^^V l^WS?*- ^♦^'V. 






'fav* •' 



*Ad« 






i?-^^. 









%.*' • 






-^^^^^ •* 



■"■ •.% co\.i.;i^.>o .^*\.j^.A /..-"-•♦*» 

















" <^ .. ^ '"' -^^ '^ '" \r ^4- •■• ^" 









v>^^%/-.^|^/,,/\-oysrs^*- -^^"^^^ ^• 



A^ -.. <i.'*^^^>'^ 









A<^ ... <<. 



LETTER 

/ 






NOTE. 

It was the intention of the writer to have appended the 
whole letter of Governor Seward to the Executive of Vir- 
^ ginia, in the shape of an appendix. Upon reflection, how- 

ever, as it would swell this pamphlet to an inconvenient 
size, and as his extracts from it have been ample in every 
instance, he has not deemed it necessary or advisable. 



•^ 



PRINTED BY WILLIAM OSBORN 
88 William-street. 

1841. 



LETTER 

7 

* TO 



HIS EXCELLENCY WM. H. SEWARD, 



GOVERNOR OF THE STATE OF NEW- YORK, 



THE SURRENDER OF CERTAIN FUGITIVES FROM JUSTICE. 

J^ J^O^. '(TccA-tcy ^J/^'oy 



If Egypt's race should any claim pretend 
O'er you by any law, or rule of theirs, 
Because they say you are their nearest kinsman. 
Who could withstand the plea, or argue it false ? 
Why, you must prove by your own native laws 
That they have no such power. 

The Supflices of Eschylus, 3, p. 32, quoted by Grotius. 



y^^-' 



NEW -YORK: 

PRINTED BY WILLIAM OSBORN 

88 William-street. 

1841. 



£4ts- 






TO 



HIS EXCELLENCY WM. H. SEWARD. 



Sir, 

I PROPOSE to address you upon the subject of 
your pending controversy with the Executive of Virginia, 
touching the surrunder of certain fugitives from justice. 
They are charged "with having stolen within the juris- 
" diction of Virginia a slave, the property of a citizen of 
« Virginia, and with having fled to the State of New- York." 
The offence is a felony by the laws of the former state. The 
matter is one of grave moment to the peace of this country. 
A requisition is made for their delivery, under the second 
section of the fourth article of the Constitution of the Uni- 
ted States ; the language of which is as follows : " A per- 
" son charged in any state with treason, felony or other crime, 
" who shall flee from justice, and be found in another state, 
« shall on demand of the Executive authority of the state 
" from which he fled, be delivered up to be removed to the 
" state having jurisdiction of the crime." Your Excellency 
declines acceding to it upon the ground that the stealing of 
a slave, although a felony by the laws of Virginia, does not 
constitute one of the crimes contemplated in this clause of 
the Constitution. In other words, that slavery has been 
abolished within the limits of New- York, and that her autho- 
rities, therefore, can never recognize the principle that one 
man can be the slave of, or stolen from another. In sup- 
port of these positions you have laid down several proposi- 
tions which I shall examine consecutively. The first, and 
perhaps the most important in your argument, is, that the 



object of the Constitutional provision " was to establish in 
" the intercourse between the states the principle of the law 
" of nations, which recognizes the mutual rights and obli- 
" gations of sovereign and independent governments to de- 
" mand and surrender fugitives from justice."* Having estab- 
lished this to your satisfaction, you go on to assume that by 
the principles of the law of nations and the practice of Euro- 
pean governments, there is no right to demand, and it has 
not been the custom to surrender fugitives from justice ex- 
cept in cases of " crimes of great atrocity or deeply affecting 
" the public safety." The late Governor of Virginia very 
properly declines discussing these points with you ; say- 
ing, very correctly, that the law of nations has nothing 
to do with the interpretation of the Constitution of the Uni- 
ted States, and that to connect them in any way would 
only be unnecessarily to encumber and embarrass the 
question. That it is purely one of constitutional con- 
struction, and to be determined as all questions of this 
sort are — by reference to the language of the provision, and 
the intention of those who framed it. With this he contented 
himself. He did not deem it necessary to offer any obser- 
vations in support of views so obviously proper. The con- 
sequence has been, that you have been left in undisturbed 
occupation of all your positions, touching the connection be- 
tween the Constitution and the law of nations. Now, while 
I wholly coincide with Governor Gilmer in the above doc- 
trines, I am not disposed to let your Excellency enjoy any 
advantage from the impunity which your arguments have 
enjoyed on this branch of the case. You complain, too, 
that in these views he takes different grounds from that of 
his predecessor, and thus shuts you out from the benefits of 
the victory which you very complacently assume to yourself 
to have gained over the latter at this stage of the contest. 
I shall not imitate the governor in this respect. I shall dis- 
cuss the question in every possible aspect, and for this pur- 

* Vide Appendix. 



pose shall first, with your permission, review that part of 
the controversy between yourself and Lieutenant-Governor 
Hopkins,* which you complain is excluded from all con- 
sideration in the argument with his successor. 

To begin then with your first proposition, that the object 
of the constitutional provision, just quoted, was " to estab- 
" lish, in the intercourse between the states, the principles 
^' of the law of nations, which recognizes the mutual rights 
" and obligations of sovereign and independent nations to 
" demand and surrender fugitives from justice." It strikes 
me as so extraordinary a one, that if I did not know that the 
matter was too grave a one for jest, I should find some difii- 
culty iu believing your Excellency serious in asserting it. 
Why, sir, there are no such principles in the law of nations ! 
As an American citizen, bound by his government's inter- 
pretation of national law, and by the weight of judicial autho- 
rity in his own country, I feel authorized in making this de- 
claration. As a professional man, examining for myself by 
the light of books and the practice of enlightened nations, I 
do not hesitate to confirm it. You admit yourself that there 
are eminent writers on international law who deny the ex- 
istence of any such principle, and you say you are aware 
that it has been never practically recognized by the govern- 
ment of the United States. How then, sir, can you 
persist in positively asserting that the object of the con- 
stitutional provision was to incorporate this principle, and 
upon this arbitrary and unwarrantable assumption, pro- 
ceed to determine so grave a question as this between you 
and the executive of Virginia Let us see the state of 
this question among the writers on national law. Voet, one 
of the most distinguished of them, and for a long time a 
professor at one of the established colleges of the United 
Provinces, distinctly says, that by the customs of all Chris- 
tendom, (except Saxony), the surrender of criminals is not 



♦ The Acting Governor of Virginia before Governor Gilmer's election. 



admitted save from humanity : " Moribus nihilominus, (non 
tamen Saxonicis) totius fere Christianismi nisi ex humanitate 
non sunt admissee remissiones," Voetde Statutis, § 11, ch. 1, 
n. 6, p. 297. Puffendorf, on the same subject, has the follow- 
ing language : " If we are obliged to deliver np a criminal, 
it is rather in virtue of some treaty, than in consequence 
" of a common and indispensable obligation :" quoted in 
" 2 Burlamaque, p. 4. sec, 23, 24, 25, 26, 27. Martens writes : 
" No sovereign state is bound, except by compact. It may 
" punish foreigners whether they commit a crime in its do- 
" minions or in those of other states, but in neither case is it 
"/jer/ec^Zy obliged to send them for punishment to their own 
" country, nor to the place where the crime was committed, not 
"even supposing them to have been condemned before their 
" escape. The extradition however is voluntarily practised by 
" certain states as a matter of general convenience and comity." 
Marten's Precis du droit des Gens, lib. 2, ch. 3, s. 22, p. 
107. Merlin, the celebrated continental jurist, holds the 
same doctrine. Merlin Repertoire de Universelle, et Rai- 
sonne Jursprudence, tit. Souverainete. The Marquis of 
Beccarai inclines the same way. Ch. 35, p. 134. ,Ward rests 
the matter on treaties and. conventions. Lord Coke says — 
" It is holden, and so it hath been rendered that divided 
" kingdoms under several kingdoms in league one with an- 
" other are sanctuaries for servants and subjects flying for 
" safety from one kingdom to another, and upoji demand made 
" by them are not by the laws and liberties of kingdoms to be 
" dilivered up, and this (some hold) is grounded upon the law 
" in Deuteronomy, non trades servum suoquiadteconfugerit." 
'He cites three instances showing the practice of England at 
past periods of her history, first, that of Morgan and others, 
who were demanded of Henry IV. of France by Queen 
Elizabeth, as having been guilty of treason against her realm. 
The French king refused to surrender them, saying, " that 
" if they had machinated any thing against the queen in France 
" he could lawfully proceed against them, but if the offence 



'' was committed in England he had no right to take cogni- 
" zance of it. That all kingdoms were free to fugitives, and 
" that it was the duty of kings to defend every one the liberties 
" of his own kingdom," and that Elizabeth had not long before 
received into her kingdom, Montgomery, the Prince of Conde, 
and other Frenchmen. The second instance is that of Cardi- 
nal Pool, who was demanded of the King of France by 
Henry VIII. of England, " as being his subject and attainted 
" of treason.-' The requisition was not successful, although 
Henry had a treatise written to prove its justice. The third 
case is that of the Earl of Suffolk, attainted of treason by 
parliament, and demanded by Henry VII. of England of 
Ferdinand of Spain. Ferdinand at first refused to give him 
up, although he afterwards consented upon the promise of 
the King of England not to put the earl to death. To these 
instances of Coke's showing the uniform refusal of England, 
France, and Spain, to recognize any such principle of the law 
of nations, a distinguished jurist has added the case of 
Perkin Warbeck, a pretender to the throne of England 
during the reign of Henry YIL, who having fled to Scotland, 
was protected by its king. 

In this country but two cases have occurred in which it 
was necessary to consider this question, and in both of these 
our government has distinctly repudiated any such principle. 
The first was that of Chevalier de Longchamps, a subject 
of the King of France, who, in 1784, before the adoption of 
the Constitution, was demanded of the Executive Council of 
the State of Pennsylvania, by the French ministry, to be 
sent to France to be punished for an insult offered to Mr. 
De Marbois, Secretary of the French Legation and Consul 
General of France. The council consulted the judges of 
the Supreme Court, and afterwards refused to deliver up De 
Longchamps. Yide, 1 Dallas, 11. The second case occurred 
in 1793. M. Genet, Minister of France, applied to Mr. 
Jefferson, then Secretary of State, for a warrant to arrest se- 
veral persons, citizens of France, who had escaped from a 
French ship of war after committing crimes against the Re- 



public. Mr. J. answered, " that the laws of this country 
" take no notice of crimes committed out of its jurisdiction. 
" The most atrocious offenders," he goes on to say, " coming 
'• within its pale are received by them as innocent men, and 
" they have authorized no one to seize or deliver them up." 
General Washington was at this time President, and Hamil- 
ton Secretary of the Treasury. Afterwards, during the pre- 
sidency of Mr. Madison, in the instructions from Mr. Mon- 
roe, then Secretary of State, to the Plenipotentiaries at 
Ghent, appeared the following language •.■* " Offenders, even 
" conspirators, cannot be pursued by one power into the ter- 
" ritory of another, nor are they to be delivered up by the 
" latter, except in compliance with treaties or by favor." In 
the speech of the late Chief Justice of the United States, in the 
celebrated case of Jonathan Robbins, who was dehvered up 
to the British Government by the elder Adams, it is a very 
remarkable fact, says Chief Justice Tilghman, in the case 
just quoted, that no allusion is any v/here made to the doc- 
trine of a binding obligation on nations to deliver up fugi- 
tive criminals. 

This having been the course of our government from an 
early period down through Mr. Madison's administration, it 
would not be surprising that our courts should enter- 
tain correspondent views. Accordingly we find that after 
an elaborate consideration of this question, in the two 
cases of Commonwealth v. Deacon, in 10 Sergeant &. 
Rawle, and in that of Jose Ferreire Jos Sentos, 2 
Brockenbro', 492, it was decided by Chief Justice Tilgh- 
man and Judge Barbour, that there was no principle in 
the law of nations which imposes a perfect obligation on 
sovereign States to deliver up criminals seeking refuge 
within their territories, and that the United States conse- 
quently could acknowledge none. Their opinions are 
based upon a thorough examination of all the leading autho- 



♦ Vide 10 Serg. & Rawle, Conunonwealth v. Deacon, 123, Opinion of Chief 
Justice Tilghman. 



rities upon this subject, as well as the usages of the civilized 
nations of Europe. Chief Justice Story leans to the same 
doctrine in the case of the United States v. Davis, 2 Sumner, 
486 ; and so does Chief Justice Parker, of Massachusetts, in 
the case of the Commonwealth v. Green, 17 Mass. 575. 
On the other hand, however, I will frankly acknowledge that 
there are writers of great celebrity, as Grotius, Heineccius, 
Burlamaqui, and Rutherford, who contend resolutely for 
the existence of such a principle, and the distinguished 
author of the Commentaries on American Law has given in 
his adhesion to their views.* 

But is it not worse than idle to talk of a principle as en- 
grafted into our Constitution, to guide the governments 
of the different states of this confederacy in their intercourse 
with each other, whose very existence is thus denied by the 
larger number of European and American jtirists, disclaimed 
at different periods by the most enlightened nations of 
Europe, and expressly repudiated by our own government 
in the only two cases in which the question has come 
before it for consideration ? You could not cast a graver re- 
flection upon the wisdom of those great men who sat in the 
Convention of 1783. If such had been their purpose— if 
they had really designed to have incorporated any principles 
of the law of nations with the Constitution, one would 
have supposed that they would at least have deemed it expe- 
dient to have done it in language declaratory, and not have 
left them to be expounded by the thirty or forty future go- 
vernors of this wide spread and growing confederacy, to 
some of whom the principles of Vattel and Grotius are as 
httle likely to bo known as those of the Talmud and Koran. 
What, under such circumstances, would probably come of 
that " sublime science, whose seat has been eloquently saidt 
" to be the bosom of God, and whose voice the harmony of the 
" world." " Nee erit alia lex Romae, aha Athenis, alia nunc 



* Vide 4 Johns. Chan. 113. 
t Hooker, 



10 

" alia posthac, sed et omnes gentes, et omni tempore una lex 
" et sempiterna et irnraortalis contenebit,"* &,c., exclaims the 
enthusiastic Roman while speaking of the law of nations. 
Alas ! how dilferent will be the language of some American 
Cicero in after years on this same subject, when the princi- 
ples of this noble code shall be heard proclaimed from the 
Sabine, then from the Mandan towns, anon from Little Rock, 
and a dozen places intermediate, to Cape Cod ! 

Let it be admitted, however, for the sake of argument, that 
such was the intention of the framers of our Constitution, 
how, as the Governor of Virginia very properly asks your 
Excellency, are the questions arising under these em- 
bodied principles of the law of nations to be decided, if 
the states have conceded no power for this purpose to' 
the federal government nor retained any themselves. The 
law of nations is intended for the regulation of the in- 
tercourse of sovereign and independent states, who have 
not parted with the power of declaring war, or of negotia- 
ting in cases of its violation. Without such power, the 
correlative rights and obligations are mere abstractions, ut- 
terly powerless to stay the ambitious nation in its career of 
aggression ; and yet you would have us believe that it is to 
such shadows that the states are to look for the protection 
of their property under that Constitution which they 
signed and adopted for its more effectual security. Once 
sovereign and independent, they stood encircled by the 
walls which nations have thrown around each other in 
the shape of international law, while they held in their 
hands the great weapons of war or negotiation. Not 
yet secure enough, however, for their more effectual 
protection, in an evil hour they adopt a Constitution ; 
which has but robbed them of their arms, given them 
none other in return, and left them but their walls, but 
now unmanned and undefended. You take from a man 



Cicero tie Republica, Lib. 111. 



11 

the means of defence with which nature has provided 
him, persuading him to rely upon the more effectual protection 
of the laws, and when you have disarmed him, you then leave 
him in his unprotected state, a prey to the assaults of the bri- 
gand and the assassin. Delusive, indeed, would be the 
protection of the Constitution, and fatally would the states 
have impaired their original sovereign rights by its adop- 
tion, if these are to be the necessary results of a legitimate 
interpretation of its provisions ! Your Excellency thinks not, 
however ! The right claimed by Virginia in this case, you say, 
is not " one of the original rights supposed," nor do you think 
that the government of the United States would feel called 
upon in a similar case to demand a fugitive criminal from 
Great Britain, nor would it be justified, by the sense of the 
world, in declaring war in the event of a refusal to sur- 
render. The original rights of the States, as understood 
by Governor Gilmer, and as must be obvious to every one, 
can mean but tlie rights of war and negotiation, and cannot 
be tested by reference to any probable or assumed course on 
the part of our government towards Great Britain, or any 
other power, in any supposed case of difficulty between 
them. That, however, which it has already pursued 
towards the latter kingdom in relation to the slaves driven 
some time since by stress of weather into the ports of Ber^ 
muda and New-Providence, on board of the schooners Em- 
porium and Enterprise, evince a far different idea of the 
principle of the law of nations on the subject from that 
which your.Excellency has manifested, and would indicate 
a very different result in the supposed case from that which 
you have ventured to predict. Their liberation has been de- 
manded, and pecuniary compensation to their owners for the 
injury sustained by their detention insisted upon. The Bri- 
tish government have yielded to the justice of both claims, the 
slaves have been set at liberty, and the necessary papers are 
now being prepared, or have been already transmitted to our 
diplomatic representative at the Court of St. James, to enable 
the two governments to agree upon the amount of indemni- 



12 

fic.ition. Here, at least, in this instance, we see the United 
States peremptorily and positively enforcing, even in her in- 
tercourse with foreio-n powers, the proscribed principle that 
one man can be the slave of another, and insisting suc- 
cessfully, at least upon its practical recognition by them. 
What will be its course in any other given case arising under 
the principles of the law of nations, touching the surrender of 
fugitives charged with stealing a slave, I do not know and will 
not pretend to anticipate, believing as I do that no such princi- 
ples exist. This one thing, however, is certain, if nations 
have a right to demand from each other the surrender of fugi- 
tives from justice in all cases of crime, and there should be no 
treaty between Great Britain and this country on the sub- 
ject, and the former should refuse to give up a criminal 
charged with stealing a slave in the United States, our go- 
vernment would be false to its duties, to its compact with 
the states, and the spirit of the Constitution, if it did not 
enforce the demand in every way required by the dignity of 
a sovereign power. Be this, however, as it may, there can 
be very little doubt what course Virginia, under such circum- 
stances, would pursue, were she not shorn of her strength 
by this Delilah of a Constitution. 

But " negotiation," you say. remains in the shape of 
an amendment to the Constitution by three-fourths of the 
states. If this is the right of negotiation, or as it is otherwise 
called, the treaty-making power, it is indeed fearfully maimed 
and mutilated. Twenty-six sovereign states to be consnlted in 
the adjustment of an international right in dispute between 
New-York and Virginia ! Among so many and varying in- 
terests, with the adverse views and feelings of the diflerent 
portions of this great confederacy on most subjects, and par- 
ticularly on this, what probability do you think there would 
be of getting the consent of three-fourths of them to any 
measure of this nature ? It is worse tlian mockery to talk 
of such a remedy. What would remain then ? Submission 
to the wrong, or secession and war ! 

I now come to your second proposition — that the princir 



13 

pies of the law of nations, (assuming it proved, as yon allege, 
that the object of the constitutional provision in question was 
to establish them in the intercourse between the states,) would 
not authorize a demand for a fugitive from justice in a case 
like that of Virginia's. The only authority I can find that 
your Excellency gives for this opinion, is contained in the 
following quotation from Grotius : " That for some ages 
" past the right of demanding fugitive delinquents has not 
" been insisted on in most parts of Europe, except in crimes 
" against the state, and those of a very heinous nature." 
Now, sir, taking into consideration your avowed principles, 
I might safely proceed to argue this question upon this ex- 
tract alone. You contend, you will recollect, for the ex- 
istence of a clear and indisputable right on the part of 
a sovereign state, by the laws of nations, to demand the sur- 
render of fugitives from justice escaping into the dominion 
of another power. If this be really a principle of the laws 
of nations, it must necessarily be based upon some other 
principle equally just and probably more obvious; perhaps 
upon the doctrine laid down by many v,^riters, that penal 
laws are not local in their etfects, but follow the criminal 
wherever he flies, Statutura personale ubique locorum per- 
sonam comitatur,* This would, at least seem intelligible 
and plausible. If this principle be then the basis of such 
mutual right and obhgation of sovereign states, it is difficult 
to understand the reason of its limitation in practice to 
crimes of the highest magnitude, or those deeply affecting 
the public safety. There is certainly no such qualification 
of the principle of the ubiquity of penal laws ; if they fol- 
low the criminal beyond his own government into the terri- 
tories of another power, wheti he has committed treason, they 
do not stop at the confines of the two states when he has com- 
mitted theft. But you may not perhaps be willing to concede 
that these rights of sovereign states are formed upon this prin- 



* Voet de Statutis, 4 4, ch. 2, n. 6, 123, qurjied by Story on Conflict of Laws, 
Martin Precis du Droit des Nationes, b. 3, ch. 3, § 223. 



14 

ciple of penal jurisprudence. Let us see, then, what Vattel says 
upon the subject : " And since no sovereign should permit 
" his subjects to molest or injure those of another, much 
" less offer a grievous insult to foreign powers, it is his duty 
" to compel the offender to repair the damage or injury if 
<' possible, or punish him exemplarily ; or, according to 
" the case and circumstances, to deliver him over to the 
" offended government for punishment."* It will be re- 
collected that you have been speaking of a right and 
obligation of states springing out of the laws of nations, 
and not of the pr^ictice of this or that nation in the exercise 
of such right, or the performance of such obligation. Keep- 
ing this fact in view, will you point out in the foregoing 
language, containing the statement of the duty in which 
said obligation has its origin, so far as regards the citizens 
of one's own state, that part which authorizes you to restrict 
such obligation to crimes of the greatest magnitude or those 
deeply affecting the public safety ? If it is the duty of a 
government, as Vattel says, to see that its citizens do not 
murder those of another government, it must be equally the 
duty of a government to see that its citizens do not steal 
the property of those of another government ; and if it is 
its duty to see that its citizens do not steal the property of those 
of another government, it must be equally the duty of such 
government to see that its citizens do not assault, slander, 
or maltreat, or otherwise injure such citizen of another 
government. This, I presume, your Excellency will not deny. 
If the duty, then, of a government extends to every spe- 
cies of injury which its citizens are capable of inflicting, must 
not the corresponding obligation to surrender the offender 



* Et puis que celuici le (souverain do I'aggreseur) nedoit; point souffrir que 
" ses sujets niolesteiit Ics sujets d'uuiruiou leur t'assent injure, beaucoup moins 
" quils otiimscnt audacieusement les puissances etrangeres il doit obliger le coupa- 
" ble a reparer le dommagc, ou I'injure, si cela se peut, ou le punir exemplaire- 
" ment ou enfin stlon le cas et les cerconstancei le livrer a i'eiat offense pour en 
" faire justice." Vattel Droit de Gen. Liv. 11) ch. vi. § 76. 



15 

be eqiinlly comprehensive, and include, tlierefore, the mur- 
derer as well as the traitor, the thief as well as the murderer. 
What is the language itself of the whole paragraph, part of 
which you quote from Grotius? "But in most parts of 
" Europe, for some ages past, this right of demanding fugitive 
" delinquents for punishment has not been insisted upon 
" unless the crime be such as affect the state, or are of a 
" very heinous and malignant nature. As for lesser faults it 
" has been the custom to connive at them, unless by the arti- 
" cles of the treaty it has been particularly agreed on to the 
" contrary."* Now, sir, with all due deference, permit me to 
say, I am at a loss to discover, even in any part of this extract, 
any authority for your limitation of the right of surrender 
to " crimes of great atrocity, or deeply affecting the public 
" safety." You will scarcely contend, because some Euro- 
pean governments have not thought proper, from considera- 
tions of convenience, or from a common understanding, to 
insist upon its exercise, except in crimes of the deepest dye, 
that it has been annihilated so far as relates to those of a 
milder character. This would be a strange destiny indeed 
for a great original principle, having its origin, you say, in 
the law of nature, and the common and universal sanction of 
a civilized world ! " The law ofnations,"says Burlamaqui,* 
" is the law of nature ;" the law of nature is the law of God, 
traced on the hearts of us all, for our common happiness, 
and changes not ! 

But to return to the language of Grotius ; why, let me 
ask, did you confine your quotation to the first of the two 
paragraphs which 1 have just extracted ? Can it be that 
the expression " connive at them," used in the latter in re- 
ference to the practice of ihe European governments on the 
subject of the lesser faults, could have escaped your obser- 
vation, or that seeing it, you could have been unaware of the 



* Grotius de Jure Pacis ct Bellin, B. 4, c. xx. n. 5. 
t Burlamaqui, 164. 



16 

importance of its signification? I am strangely in error if 
this language does not emphatically show that Grotius still 
believed the original right to demand, and obligation to sur- 
render, to exist unimpaired in all their ancient extent, and 
that the custom to which he alludes as existing among some 
nations for some centuries past, of limiting it in practice to 
crime of a heinous nature, had by no manner of means 
affected it. If this was not his meaning, why the use of such 
language as this, "as for lesser faults it has been the custom 
" to connive at, them." If there were no right to demand 
or obligation to surrender lesser criminals, whence the ne- 
cessity of conniving at their escape ? A prompt and pe- 
remptory refusal would be all that could be required or anti- 
cipated, under such circumstances; and Grotius, in com- 
mentating upon the principle, would have said, perhaps, that 
an effort had been made by some nation to extend it in prac- 
tice to lesser faults. It is impossible, it appears to me, to 
come to any other conclusion. He is speaking of a princi- 
ple of the law of nations which enforces an obligation upon 
governments to surrender criminals who may have sought 
an asylum in their territories ; and he goes on to say that 
although extending naturally to every species of crime, 
whether atrocious or venial, it has not been insisted upon 
in practice, for some ages past, by the nations of Europe, ex- 
cept in cases of the former character. In those of the lat- 
ter — the lesser crimes or faults — although the right to de-' 
mand, and the obligation to surrender, is equally strong by 
the principle of the law — it has not been deemed expedient to 
insist upon its rigid exercise or observance, either with a 
view of saving trouble, or from considerations of policy. 
Nothing would be more natural since these smaller offences 
do but little injury to the states or its citizens, and govern- 
ments might well agree, by a sort of compact or common 
consent, to say nothing about them, and to connive at the 
escape of those charged with their commission. That this 
is a fair interpretation of the language of Grotius, no can- 



17 

did man, it appears to me, can doubt.* If it be so, then, ac- 
cording- to his authority, the great original right to demand, 
and obligation to surrender fugitives from justice, which 
you contend for as an essential principle of the law of na- 
tions, and one embodied in the Constitution of the United 
States, still exists in all its ancient extent — comprehending 
every species of crime, whether great or small — was for 
centuries made the rule of practice among the nations of 
Europe, and has only lately ceased to be enforced, ("for 
some ages past,") and then not by all of them (" most parts 
of Europe,") in cases of the lesser faults. What is to be 
thought now of language such* as the following, made 
use of by you in your letter of November 5th, 1840, to 
Governor Gilmer.t " The fact that it" (meaning the right 
to demand fugitives and the obligation to surrender them,) 
" has never been extended to other offences than those of 
" an atrocious or heinous description, and such as were re- 
" cognized to be of that character by the nation upon whom 
" the demand was made, affords the best evidence that 
" there is no good reason for its extension to any other 
•' crimes." Here, with all due respect, is the gratuitous as- 
sumption of a fact, that the rule has never been extended 
to other offences than those of an ^atrocious and heinous 
description, in which you are not only 7iot sustained, but 
indirectly contradicted by the very authority you yourself 
have quoted, and in addition to this the arbitrary limi- 
tation of the original right to such cases, and putting the 
question as one of extension of such right, when Vattel and 
this same authority make it as broad as the duty in which 
it has its origin. 

I have now finished the consideration of your principles 
and authorities on this branch of the case : without re- 



* The same view of Grotius' meaning has been taken by Chief Justice Tilghman 
in the celebrated case before quoted, of Commonwealth v. Deacon, 10 Serg. and 
Hawle, 123. t Vide Appendix. 

3 



18 

ference to them your Excellency will now permit me to give 
yon my views of it. All that I shall assume for the present 
is, that the stealing of a slave constitutes an offence or 
crime of some sort or other. Upon the subject of this 
mutual right and obligation of nations, you will find 
that Yattel, after alluding to the duty of sovereigns to 
take care that their subjects do no injury to the citizens 
of other governments, or the government itself, and the con- 
sequent obligation to punish the criminals themselves, or 
hand them over to the offended nation, uses the follow- 
ing language : " This is what is observed generally 
»' enough with regard to great crimes, which are equally 
" contrary to the laws which all nations have enacted 
" for their security. Assassins, incendiaries, and robbers, 
" or thieves, are seized every where upon the requisition 
" of the sovereign in whose territories the crime has been 
" committed, and handed over to his justice. They go 
" still farther in states more nearly allied by friendship and 
" proximity. In cases even of the common offences, which 
" are prosecuted in civil actions, whether it be for satis- 
" faction for the injury, or for a slight civil punishment, 
" the subjects of two adjoining states are mutually bound 
" to appear before thft magistrate of the place where they 
" are charged with having committed the offence. Upon 
"a requisition of. this magistrate, which they term a let- 
" ter rogatory, they are summoned judicially, and con- 
" strained to appear by their own magistrate. Admirable 
" institution, by which many neighboring states live toge- 
" ther in peace, and appear to form but one republic !"* 
Farther on in the next paragraph he says : " The sovereign 
" who refuses to repair the injury caused by his subject, or 
" to punish the criminal, or to deliver him up, renders him- 
" self, in some measure, the accomplice of the injury, and 
•' becomes responsible for it. But if he delivers the property 



* Vattel, Droit dea Gena, Lib. 11, c. vii. § 77. 323. 



19 

" of the criminal for indemnification, in those cases which 
" admit of reparation in this way, or the individual himself 
" to undergo the punishment due to his crime, the offended 
" party has nothing farther to ask of him."* Of no part of 
these extracts from Vattel can I suppose your Excellency to 
have been ignorant, and yet in writing to Governor Gil- 
mer of these crimes, which fall within the cognizance 
of the law of nations, and are alike contrary to the laws 
of all countries, you make use of the following lan- 
guage : " The science of jurisprudence is not as imper- 
" feet and vague as you suppose. The principles of 
"a moral law were written by the hand of God in 
" the hearts of men. The light of revelation brings them 
" out in bold relief, and I apprehend that on examination of 
" the common law, the civil law, and the statutes of all civi- 
" lized and christian countries, it will be found not only that 
" murder, treason, arson, burglary, forgery, perjury, rape, 
" incest, bigamy, and the hke, are crimes, but also that they are 
" neither lesser faults nor ordinary transgressions, while 
" adultery, petty stealing, libels, trespasses upon lands, and 
" the like, are not regarded as crimes of great atrocity, or 
" deeply affecting the public safety." This enumeration, T 
take it, comprehends all the crimes which you suppose to 
come within the denomination of great crimes, and conse- 
quently within the meaning of Vattel, and the other writers 
on national law, when speaking of legitimate cases of extra- 
dition, and yet it contains no allusion to any species of 
theft, whether robbery or theft by force, grand larceny or 
theft by stealth. Passing by now your reasons, which it would 
be curious to know, however, for adding forgery, perjury, 
rape, and incest, to the catalogue, and taking robbery from 
it, let me inquire how, upon any fair rule of interpretation, 
or with a proper regard to the meaning of this last author's 



Vide Idem. § 77. 



20 

words, do you consider him, in the paragraphs jnst quoted, to 
exclude theft, or grand larceny, from among those crimes 
which constitute legitimate subjects of surrender under the 
modern practice of nations ? " Les assassins les incendiairies 
les voleurs," he says, are seized every where upon the requisi- 
tion of the offended nation ; and in states more intimately 
connected by friendship and neighborhood, they carry the 
practice still farther ; they surrender even in cases of the 
smaller or common offences, such as are prosecuted by civil 
actions. Now, sir, permit me to remark, that the word 
" voleur," here used by Vattel, does not mean robber alone, 
as indicative of one who steals by force, in contradistinction 
to one who steals by stealth. In this conclusion I am sus- 
tained by the concurring testimony of dictionaries of high- 
est repute in France, as well as more powerfully, if possible, 
by the context itself of the writer. Vole^ir is a generic word, 
applying to all classes of thieves, as well to those who rob 
by force, as to those who rob in secret, and it cannot be 
confined p^-operly to either of the two kinds to the exclusion of 
the other.* That Vattel intended to use it here in its correct 
sense, and consequently as comprehending great thieves, or 
those committing the larger offences of simple larceny, as 
well as robbers, or those committing compound larceny, it 
is impossible to doubt without some better reason than any 
that appears in the section itself. Indeed, if we have refe- 
rence to the entire context, as before intimated, this conclu- 
sion becomes a matter of almost positive certainty. After 
stating, as above, that assassins, incendiaries, and " les 
voleurs," are surrendered by all nations, he goes on to say, 
that in states more intimately allied with each other, they 



♦ Voleur celui, cdle qui a vole, ou qui vole habituellement. Les voleurs des 
grands chemins. Voleur domestique voleur des nuii. Voler, v. a prende furlive- 
ment ou par la force la chose d'autrui pour se I'approprier. Voler le bourse de 
quel qu'un, voler d'argent. Dictionary of the Krench Academy. 

Voleur, Latro. fripoii qui vole, qui a vole, en general cclui que par la force, ou 
par la ruse s'emparedu bien d'auirci. Boist. Universal Dictionary. 

Voleur— thi«f. Boyer. 



21 

carry the custom so far as to surrender even in matters of 
common offences, "des delits communs," which are the subject 
of civil prosecution. Now, clearly, theft, particularly grand 
simple larceny, cannot be regarded as a common offence, nor 
is it punishable in a civil action for damages, and therefore 
unless the term voleurs is supposed to mean thieves, as well 
as robbers, the crime of simple theft, even in the most aggra- 
vated cases, would seem to have been excluded from all con- 
sideration in the intercourse between nations, and to consti- 
tute a clear casus omissus in their practice. This involves 
too gross an improbability to be believed for an instant, and 
I should be justified in resorting to almost any supposition 
that would remove the necessity for its adoption. I am autho- 
rized, then, I think, fully in concluding the correct trans- 
lation of the word voleurs to be thieves, and the crime of 
theft, at least when grand larceny, to come within the prac- 
tice of those nations of Europe on the subject of the surrender 
of fugitive delinquents, to whom Vattel and Grotius allude. 
This conclusion is powerfully, and most convincingly 
strengthened, when we reflect upon the utter cibsurdity of 
making any distinction between the crimes of incendiarism, 
robbery and theft, on the score of their repugnancy to the 
laws of the civilized world, and their incompatibility with 
those which every state has adopted for its preservation and 
security. " Des grand crimes qui sont egalement contraires 
aux lois de surete de toutes les nations," (great crimes, which 
are equally contrary to the safety, or the laws of safety of all 
nations,) is the expression of Vattel. Murder, then, burning of 
houses, and robbing men of their property, are great crimes, 
equally contrary to the laws, or incompatible with the safety 
of all nations,— murder as destructive of life — ^incendiarism 
and robbery as destructive of the security of property. 
Arson, it is true, is said be a greater crime than theft, for 
some fanciful reasons which the writers on criminal law 
give ; and so is robbery they say, because it is accompanied 
with an assault upon the person, but the atrocity of both 



22 

crimes, and the danger which they threaten to the safety of 
a community, are derivable ahke from their violation of the 
right of property. Theft strikes at its very foundation, 
is punishable in England by death in the same man- 
ner as arson and robbery, and it may fairly be presumed 
to be contrary to the laws of every civilized nation on earth. 
It is wholly subversive of the great object for which society 
was instituted, utterly destructive of commercial intercourse, 
and the nation that permits it could not preserve its foreign 
relations for an hour, or live a day without an internal revo- 
lution. The laws which restrain it lie at the very founda- 
tion of social order, and may be said to be of more consi- 
deration than those which guard life itself, since the latter, 
without the means of sustenance, could not long be pre- 
served. Can theft, then, be properly affirmed not to be a great 
crime, repugnant alike to the laws, and incompatible with 
the security of all nations? 

Again, Vattel has this language : " But if he delivers up 
" the property of the offender by way of compensation, in 
" cases which admit of this species of reparation, or his per- 
" son, that he may suffer the penalty of his crime, the 
" offended nation has nothing further to ask of him." Now, 
it is a very remarkable circumstance that to no one of the 
crimes which you enumerate as coming within the principle 
of the law of nations, has pecuniary compensation ever been, 
or can it be, with any propriety, applied ; — no judge or lawyer 
ever having heard, I presume, of giving money in satisfac- 
tion of murder, treason, arson, burglary, forgery, perjury, 
rape, incest or bigamy. There must, then, even according 
to Vattel, be some other crimes than these in which it is 
the duty of nations to surrender up fugitives from justice, 
or make atonement in some other way for the injury they 
have committed, and what they can be, if theft is not one 
of them, I confess I am unable to determine. These are ob- 
vious reflections, which I find some difficulty, you will 
permit me to say, in believing could have escaped a mind 



23 

of so much sagacity as your Excellency's, and my doubts 
are very much increased when I find that in two cele- 
brated cases, determined, the one in the neighboring province 
of a great empire,^and the other by a late chancellor of New- 
York, one of the two most distinguished living jurists of 
this country, it has been solemnly adjudicated that theft 
is one of the crimes which fall within the law of nations, 
and constitutes a legitimate case of surrender under its 
principles. 

" The crimes," says Chancellor Kent, " which belong to 
" the cognizance of the law of nations, are not specially de- 
" fined, and those which strike deeply at the rights of pro- 
" perty, and are inconsistent with the safety and harmony of 
*' commercial intercourse, come within the mischief to be 
" prevented, and within the necessity, as well as the equity of 
" the remedy. If larceny may be committed, and the fugi- 
" tive protected, why not compound larceny as burglary and 
" robbery, and why not perjury or arson ? They are all 
" equally invasions of the right of property, and incompati- 
" ble with the ends of civil society."* " The objection," 
argues Chief Justice Reid, " that the offence charged against 
" the prisoner (theft) is not of that enormity as either to re- 
" quire or permit that the executive should interfere to deli- 
" ver him up can have no weight. It would be difficult to 
" establish a rule, where none has been settled, to enable us 
'' to distinguish the shares of enormity of different offences, 
" their evil tendency or pernicious effects, so as to limit the 
" power of the prerogative as applicable only to such crimes 
" as are productive of a certain quantum of evil in a state. 
" The certain and positive rule laid down by all writers on 
" international law, and the decisions had thereon, as above 
" referred to, is, that where a crime has been committed, the 
" criminal may be surrendered to the offended country. 
" There is certainly great difference of opinion as to what 
" kind of crime this ought to apply, some hol'ding it to ex- 



* Matter of Washburn, 4 Johns. Ch. Rep. 113. 



24 

" tend to high treason, robbery and murder, while others, 
" apply it to minor ofTences, and even civil damages, but 
" where the general right is acknowledged it must be left to 
" neighboring nations to determine the necessity of enforcing 
" it according as to good policy and sound discretion shall 
" require."* This is not all : the existence of a power to 
surrender fugitives from justice being conceded to exist, the 
reasons for extending it to theft, as well as all other cases of 
felony, have been so obvious as to induce Mr. Chitty, in his 
Treatise on Criminal Law, vol. 1, p. 136, to lay it down as 
a general established principle, " that if a person, having 
" committed a felony in a foreign country, comes into Eng- 
" land, he may be arrested here, and conveyed and given up 
" to the magistrates of the country against the laws of which 
" the offence was committed." With these various decisions 
and authorities before you, for I am not at liberty to presume 
you to have been unacquainted with them, I confess, with 
all proper respect, I am utterly unable to conjecture any rea- 
son or justification for your deliberate exclusion of the crime 
of theft, from an express enumeration of those offences, which 
come alone within the principle of the law of nations, on 
the subject of the surrender of fugitives from justice, and, 
consequently, according to your doctrine, within the provi- 
sion of the Constitution of the United States. If there were 
not a word in the pages of Vattel or Grotius upon the sub- 
ject, and the principle had never come before the tribunals 
of New- York, or the United States, for consideration, your 
own unassisted reason, engaged in reflection upon its origin, 
its object, and its character, and apprized that incendiarism 
and robbery were among the crimes which came within its 
scope, as being contrary to the laws of safety of all nations, 
must at once, I should have thought, have led your Excel- 
lency to suspect that theft could not properly be excluded. 



* Court of King's Bench, Montreal, June 20th, 1827. Dom Rex v. W. E. 
Ball e( al., 7, on Habeas Corpus, American Jurist, vol. 1, 307. 



25 

Every obligation has its origin in a duty, and every law 
in some principle of public policy, or the protection of pri- 
vate rights. There is no imaginable duty which you could 
predicate of a government that would create an obligation to 
surrender an incendiary, a house burner, a counterfeiter, or a 
robber, and leave it at liberty to act as it pleased, when the 
thief who had stolen fifty thousand dollars of the property of a 
subject of a foreign government was demanded at its hands. 
There is no principle of public policy, or protection to pri- 
vate rights, that, violated by incendiarism, by arson, by forge- 
ry, or robbery, would not be equally violated by theft. 
These are propositions too obvious to admit of argument 
or illustration, and once conceded to be just, it follows, as a 
necessary consequence, that the great original right to de- 
mand fugitives from justice, and the corresponding obligation 
to surrender them, extend, by the law of nations, and the 
principles from which it is derived, to cases of theft, as well 
as those of arson or perjury ; and if this be so, you cannot 
but be aware, that the practice of a few European na- 
tions in regard to its exercise, (admitting that it has been 
confined by them to certain classes of crimes,) observed per- 
haps from courtesy or convenience, from policy, or any other 
consideration whatsoever, cannot be otherwise than of the 
smallest possible moment to a state who is thrown back upon 
it, for the first time, for the protection of her domestic institu- 
tions, and the vindication of her violated laws. If, in- 
deed, Virginia has received nothing else in exchange for 
her sovereign attributes of war and negotiation, she will 
proclaim her right to the principle in all its original 
and fullest extent, notwithstanding, in the language of 
Grotius, it has not been insisted upon in most parts of 
Europe for some ages past, unless in cases of crimes 
that affect the state, or are of a very heinous and malignant 
nature. These nations, doubtless, had good reasons for 
dispensing with a rigorous compliance with the principle 
in every instance, and had a full right to do so ; Virginia, 
however, claiming but the same power of judging of the 
4 



20 

expediency of giving up any portion of the right, deems 
it unwise, if she is dependent upon it alone for the pro- 
tection of the property of her citizens, to imitate their 
example, and announces her determination to insist upon 
it in all its natural strength and comprehensiveness. 
Let it be conceded, then, and I humbly apprehend it 
cannot justly be denied, that theft comes within the 
principle of the law of nations on the subject of surren- 
der — assuming always that there is such a one — and no- 
thing more is required, as I shall presently show, to make out 
the case of Virginia. But I will not stop here. I go farther, and 
contend, that if it is admitted that there is a principle of the law 
of nations, recognized and sanctioned by the civilized world^ 
which imposes a perfect obligation upon sovereign states to 
surrender, in any case, criminals seeking refuge in their terri- 
tories from the justice of other states, that this principle is not 
confined to any particular crimes, such as murder, treason, 
robbery, or theft, or any others of the same grade, but that 
it extends to every species of offence, whether great or small, 
heinous or venial, punishable by fine, by imprisonment, or 
by damages in a civil action, and that the right or rule, as 
it may be called, as laid down by writers on national law^ 
has no reference whatsoever to the grade of the offence, or 
the penal code of the government in whose limits the crimi- 
nal may be found. Arguing, a priori, of the principle, this 
would seem to be the necessary conclusion ; for, giving it 
any origin you please, whether the duty of a government to 
prevent its subjects from annoying another government, or 
its citizens; the justice of compelling him to repair an in- 
jury who has committed it ; the obligation under which 
every man is placed to obey the laws of the country into 
which he is permitted to enter ; the desire to perpetuate 
peace, and encourage commercial intercourse, or a gene- 
ral disposition among nations to keep down crime, and 
protect the enjoyment of property, and thus preserve the 
basis of all social institutions, it is utterly impossible to 
see any good reason which would render its limitation' 
to any particular character of offences either necessary 



27 

or desirable. Arguing, too, of its extent, with reference 
40 the dignity and sovereignty of nations, one finds as 
little cause for restricting it to crimes of any specific atro- 
city ; all genuine principles, pertaining to both considera- 
tions, being quite as much implicated in the surrender 
of criminals charged with aggravated crimes, as they would 
be in the case of those charged with venial ofiences. When 
we come to the books which profess to treat of the principle, 
and of the construction which nations have placed upon it, we 
findthese anticipations, as to its character and extent, fully sus- 
tained by their language. Your Excellency will in vain hunt, 
I apprehend, in the pages of Vattel, Grotius, Bnrlamaqui, or 
Putfendorf, for any authority, in the absence of treaty or 
usage in the particular case, for the restriction of the 
principle to crimes of great atrocity, or those deeply affect- 
ing the public safety. It will be invariably found, let me 
venture to say, that when these great jurists speak of this 
principle, although they do not expressly declare in so many 
words that it applied originally to every species of offence 
for which a man can be punished, and yet remains unchanged 
by the practice of nations, they yet make use of language 
from which such conclusions are matters of necessary de- 
duction. 

In the language of Chief Justice Reid, before quoted, 
" the general right is acknowledged" by them, and when- 
ever they speak of limitation, it is only as historians narra- 
ting the practice of some European nation on the subject for 
some ages past. " And since no sovereign," says Vattel, 
" should permit his subjects to disturb those of another, or 
" do them an injury, much less audaciously offend foreign 
" powers, it is his duty to compel the offender to repair the 
" damage or injury, if possible, or to punish him exempla- 
" rily, or, according to the case and circumstances, to deli.- 
'•' ver him over to the justice of the offended state. Grotius' 
" language, to quote it again, is, " This right of demand- 
•" *"& fugitive delinquents to punishment, has not been in- 
-" sisted upon, in most parts of Europe, for some ages past, 



28 

.^' unless in crimes against the state, and those of very hei- 
*' nous and malignant nature ; as for lesser faults it has been 
" the custom to connive at them, unless otherwise agreed 
" upon by treaty." Burlamaqui repeats this language almost 
in the same words, and attributes like opinions to Puffen- 
dorf.* Now, when these expressions of the great foun- 
ders of national law are closely considered, I really do 
not discover, if your Excellency please, any one phrase 
that authorizes you to deny that the principle of the law of 
nations on the subject of the surrender of fugitives from 
justice, if conceded to exist at all, applies to all cases of 
offences whatsoever ; or to affirm, " that it has never been 
*' extended in practice to other offences than those of an 
M atrocious or heinous description, and such as were recog- 
" nized to be of that character by the nation upon whom the 
" demand is made." The two positions, with all imaginable 
respect, strike me, may it please your Excellency, without 
shadow of pretext or plausibility. With Vattel the obligation 
flows from the duty of a government to see that its citizens do 
not molest or injure the citizens of other governments, or the 
governments themselves, and consequently must apply to 
every case in which an injury or annoyance has been in- 
flicted. Grotius says nothing of the origin of the right or obli- 
gation, but speaks of it as an acknowledged thing, and only 
says it has not been insisted upon for some ages past, in some 
parts of Europe, in cases of the lesser offences. He gives 
no intimation that this has proceeded from any doubt 
entertained that the principle does not extend to such cases, 
but, on the contrary, he leaves jou, by his language, under a 
violent presumption that it has arisen purely from considera- 
tions of convenience. It resolves itself, then, into a mere 
matter of practice of a few European nations, in relation to 
^he minor offences. 

Let us see, then, what this practice has been, and to 



2 Burlama(iui, p. 4, sec. 23, et seq. 



29 

begin, let me ask your Excellency if you know of any 
two nations in Europe whose acts on this subject have 
been regulated exclusively with reference to the princi- 
ples of national law, who have conceded the right to 
demand in cases of the more heinous crimes, and denied it 
in those of a mitigated character. We have just seen Eng- 
land, France and Spain, at different periods of their history, 
successively disclaiming any such principle as obligatory 
upon them, even in cases of the crime which stands at the 
head of your list ; and we find treaties on the subject of 
surrender of fugitives from justice as early as 1174, between 
Scotland and England ; afterwards, in 1308, between the 
latter power and France, and in 1378, between France and the 
kingdom of Savoy. Here we have then the four.-chief and most 
enlightened powers of Europe — France, England, Scotland 
and Spain — each respectively repudiating any such principles 
of the law of nations as binding upon them in their sove- 
reign capacities, and refusing to be governed by them, and 
making their rights and obligations on such subjects a mat- 
ter of constant treaty stipulation. It is not from the exam- 
ple of these nations, then, clearly, that you can derive pre- 
cedents or authority for matters of practice under the prin- 
ciple alone. To what others, then, are we to look 7 I hum- 
bly apprehend your Excellency will find but few, if any, 
and certainly not so large a number as would justify you, 
or any future commentator on the law of nations, in saying 
that the original principle had been at all modified or 
abridged by the modern practice of nations. The language 
of Vattel on this subject, in which he speaks of the letter 
rogatory as an institution which prevails in Switzerland, I 
have before quoted ;* upon it, by way of commentary, occurs 
the following passage in your letter to the Governor of Vir- 
ginia of October 24th, 1839 :t '• The name of letters rogatory, 
" and the remark that this is an admirable institution, and 
" that it is in force throughout all Switzerland, are sufficient 



• Vide p. 19. t Vide Appendix. 



30 

" to show, without other proof, that the usage or practice here 
" described by the learned author, is not an enlargement of 
" the law of nations, but that it is a municipal institution 
" established by the contract of federation between the 
" Swiss cantons, and that the law of nations is thus super- 
" seded by a written, law, or, as we should describe it, a con- 
" stitution." Now, I venture to affirm, with all proper re- 
spect, that your Excellency has here totally misconceived 
the meaning of Vattel, or, apprehending it, that you have 
drawn unauthorized inferences from it. Your evident 
purpose is to show, that without letters rogatory, govern- 
ments have no right, by the principles or practice of the law 
of nations, to insist upon the surrender of fugitives from 
justice in cas(^ of common offences, and that as this is an 
institution peculiar to Switzerland, and established by its 
contract of federation, it cannot serve as a precedent or au- 
thority to other states. I humbly apprehend the real state of 
the facts of the case to be wholly opposed to the tendency of 
this reasoning. Switzerland, like England, France and 
Spain, recognizes no perfect obligation upon nations, by the 
law of nations, to surrender fugitives from justice, whether 
in cases of crimes of great atrocity or any others ; and this 
very custom of asking for the delivery of fugitives by letters 
rogatory, furnishes to my mind the most conclusive evi- 
dence of the fact, and I think would have done to your Excel- 
lency's, if you had reflected upon the obvious etymological 
meaning of the phrase, and looked into the books which treat 
of its nature. " Commission rogatory, or letter rogatory," 
says De Ferriere, (I translate from the French,) " is a com- 
" mission issued by one magistrate, and addressed to another 
" who is independent of him, by which he requests him to 
" execute, within his jurisdiction, some mandate, decree, or 
"order of justice, or to inform himself of some fact, or toregis- 
" ter some act, or do some other thing. If the judge who issues 
" the commission happens to be the sovereign of the other, 
" the commission will 710I be a letter j-ogatonj, but it will be 



oi 

" despatched in the form of a decree, and these sorts of 
" commission are called letters of command, or letters com- 
" mandatory,"* The term rogatory, thus we see, imports a 
request, addressed to the justice or friendship of the party 
applied to, and repudiates necessarily all idea of a right, in 
contradistinction to the requisition or demand which an 
acknowledged right would authorize, and which our consti- 
tutional provision meditates. Letters rogatory, in a word, re- 
semble exactly the commissions which issue every day from 
our courts to take testimony in other states, which the persons 
whom it may be addressed are at liberty to disregard or not as 
they think proper, and they have been adopted expressly to 
prevent any prejudice to the jurisdiction of the government 
surrendering. They then afford conclusive proof of what, 
I have stated in reference to the views which prevail 
in Switzerland on the subject of these supposed prin- 
ciples in the law of nations on the subject of the sur- 
render of fugitives from justice. There is not a doubt upon 
the subject ; but I will put the matter beyond doubt, and 
the confirmation is a very remarkable one, by again quoting 
the language of a celebrated jurist, alluded to in a foregoing 
part of this pamphlet : " Moribus nihilominus (non tamen 
" saxonices) totius fere christianismi nixi ex humantate non 
" sunt admissse remissiones quo casu remittenti magistratui 
" cavendum per literas reversoriales ne actus jurisdictioni 
" remittentis ullum pariat prejudicium."t Here we have 
the testimony of one of the most distinguished authors 
of Europe, to the effect that by the customs of almost all 
Christendom, the surrender, or the principle of the surrender 
of criminals, is not admitted, except as a matter of favor or 
humanity, and when done it is by means of letters roga- 
tory, that there may be no prejudice to the l8cal jurisdiction ! ! 



* De Perriere. Dictionaire de Droit et de Pratique, article Lettres Rogatoires, 
Tom. 1. 2. New Paris edition.] 
t Page 6. Voetde Statutis. 



Your Excellency will scarcely contend, I presume, that 
Switzerland alone, of all the countries of Europe, is not in- 
cluded in a declaration thus comprehensive, and without 
qualification, to which Saxony is the only alleged exception. 
If not, then, here is conclusive confirmation of what I ventured 
to affirm a few lines back, that the principle of the surrender 
of the fut(itives .from justice was not received at all in 
•Switzerland, and that the custom of letters rogatory had 
its origin in the fact. 

The oppugnancy of this to any thing your Excellency may 
have said may not be apparent at first sight, for you do not 
go so far as to declare that this principle does prevail in 
Switzerland, but you would leave us to infer that it does, 
and that this institution called letters rogatory, was established 
by the articles of confederation between the cantons for the 
express purpose of supplying its absence in the cases of 
minor offences, and thus making it complete, and to extend 
to all classes of offences. In this view of the matter, 
the custom, so far from being evidence of the practice of 
nations under the principle, in relation to the lesser 
offences, as the Lieutenant Governor of Virginia would 
fain have persuaded you it was, goes, in truth, to furnish the 
strongest possible testimony of what you contend for, the 
limitation of the principle to crimes of great atrocity, or 
those deeply affecting the public safety. It is for this reason 
that I have deemed it a matter of some importance to the argu- 
ment to arrive at the facts of the case as relates to Switzerland, 
and to see clearly the origin of letters rogatory, and the object 
of their establishment, I have before alluded to your conclu- 
sion that it is a municipal institution, established by the con- 
tract of federation between the different cantons, and must now 
be permitted to asft your Excellency for the proof of the fact. 
The name itself, you say, and the remark that Vattel 
makes, that it is an admirable institution, and that it is 
in force throughout Switzerland, are of themselves, suf- 
ficient to convince you of it. Now, sir, I will not 



33 

undertake to contradict you on this subject, but I venture to 
affirm that your Excellency will in vain hunt for any autho- 
rity for the declaration in any contract of federation now 
or ever in existence between the cantons of Switzerland. 
Two writers of eminent consideration on matters of this 
country say, that there is no one single treaty or compact 
between all the cantons thereof, in their joint and several 
capacities as equal members of one great federative league, 
and that the only constitution truly national which Switzer- 
land knows, is that of a federal army, organized in 1688 
between the cantons and some associates of the league. 
The treaties which regulate the relations of the cantons with 
each other are as numerous as the cantons themselves, who 
are sovereign independent states, making war and peace, 
without the slightest reference to the national Diet.* If 
these views, then, of the meaning of letters rogatory^ 
their object and origin, is correct, the example of Swit- 
zerland proves nothing in relation to the original extent 
of the principle of surrender of fugitives from justice 
by the law of nations, but becomes highly important as 
establishing the usages of an enlightened, people, adopted 
from considerations of policy, propriety, justice, and good 
feeling, on a subject of vast importance to the harmonious 
intercourse of foreign states; and Yattel evidently designed, 
in its introduction, that it should, be so considered. It 
certainly is not an enlargement of the law of nations^ 
as you well say and I very much question, with all due 
respect, whether any one would say it was; nor does it, 
as I have intimated before, furnish evidence of what I cannot 
but think you would wish us to believe it does, the origina,l 



* La seule constitution vraiment nationale que nous connaissons c'est J'etafi 
d'une armee confederale regie en 1688, entre les cantons et dcs quelques associea 
dela Hgue. Dictionnaire de la Suisse, Corps Helvetique, vol. 1, p. 71, Planta's 
Switzerland, vol. ii. p. 291. 

5 



34 

limitation of tlie principle of surrender to crimes of great 
atrocity ; much less is it a municipal institution established 
by the contract of federation between the Swiss cantons to 
supply the original defects of such principle in matters of 
the lesser offences. It is nothing more or less than a prac- 
tical recognition of the expediency and justice of establish- 
ing between the cantons a right to demand, and an obligation ^ 
to surrender fugitives from justice, in every instance of 
violation of municipal law ; the custom in the first cases 
allowed from the considerations just mentioned, and after- 
wards in the lapse of time, and by continued sanction, ac- 
quiring the force of statute regulations, like those usages which 
at different periods have imperceptibly been blended with, and 
become a part of the common law of England. Your Excel- 
lency is not perhaps aware, that this institution, or custom of 
letters rogatory, is not peculiar to Switzerland, and the pre- 
sumption, then, for it can be nothing more, even as you express 
it, that it has grown out of a constitutional provision in the ar- 
ticles of league between the cantons, is deprived of even the 
appearance of probability. It obtains, says the celebrated wri- 
ter, so often before quoted in the United Provinces, " Id quod 
(speaking of the custom of letters rogatory) etiam in nostris 
" provinciis unitis est receptum,"* and doubtless also exists 
in the Germanic confederation, and many other states, which 
have, in the language of Vattel, more intimate relations of 
friendship and good neighborhood. The truth is, sir, and I 
think your Excellency will not, upon reflection, contradict 
it, there is perhaps not a nation in Europe whose practice 
upon this subject has been regulated upon acknowledgment of, 
and by reference alone to the original abstract principle of 
the right and obligation to surrender ; nor among that num- 
ber who have made treaties with each other, or between whom 
a custom has sprung up in the course of time, in the absence 



• VoetdeSiai. §11, cli. 1, 4. G. 297. 



35 

of treaties, is there any general established rule having the 
force of universal sanction ; and you will permit me to add 
it is unphilosophical to look for such a one. Every nation 
will judge for itself in such doubtful matters ; be regulated 
exclusively by regard for her interests in the construction of 
the law, and in the language of Chief Justice Reid, " en- 
" force it or not, according as good policy or sound discre-- 
" tion shall require." Should she acknowledge the existence 
of the principle, she will not consent to its observance in 
every or any instance, if it conflict with her peculiar interests 
or views ; should she deny it, she will not the less admit the 
expediency of establishing such a rule, if it comport with 
them, and she will either sanction a treaty stipulation to 
this eftect, or she will, from time to time, acquiesce in the 
practical attempts to accomplish it by usage. 

Permit me now, sir, briefly to review your arguments and 
positions on this part of the subject, and to recapitulate what 
I have said in answer to them. You set out with the pro- 
position that the object of the provision in our Constitution 
now in question, was to establish the principles of the law of 
nations on the subject of surrender of fugitives from jus- 
tice ; that it must consequently be construed with reference to 
such principles ; that it can extend to no cases not reached 
by them, and that as such principles, and the practice of 
nations under them, have never applied to other than 
atrocious crimes, or those deeply affecting the public safety, 
the provision in question could not be said to possess any 
greater comprehension ; and as the case presented by the Ex- 
ecutive of Virginia was not one of this character, it could not, 
consequently, be said to come within its meaning, and that 
your Excellency would be, therefore^ violating the Con- 
stitution to yield to the demand. In opposition to these 
views I have endeavored to show, and I hope not unsuc- 
cessfully, that no such principle as a perfect right and bind- 
ing obligation on nations to surrender fugitives from justice 
exists in the law of nations ; that it has been repudiated in 
practice by three of the most powerful and enlightened 



36 

empires of Europe^ and if we may credit Voet, by almost 
every country in Christendom ; denied by the largest number 
of writers on national law, rejected by the highest tribunals 
of our states, and disclaimed by our government in the only 
cases in which it has ever come before it for consideration ; 
and that it is preposterous, therefore, to suppose that our fore- 
fathers designed to incorporate any such apochryphal prin- 
ciple into our Constitution as a rule for the regulation of 
the international rights of the states. I have further endea- 
vored to show, however, that if these national rights and 
obligations be deemed to exist, that they are as broad and 
comprehensive as the duties, or sense of justice, or consider- 
ations of policy in which they had their origin, and that they 
extend, according to Vattel, Grotius, Burlamaqui, and other 
most celebrated writers, to every species of offence, whether 
venial or otherwise, against the laws of a state ; that they are 
not limited to crimes, nor any particular class of crimes, nor 
have they any connection with the penal code of the state to 
which the criminal flies. I have further endeavored to 
show, that this right, if it ever existed, has not been in the 
slightest degree abridged, modified or affected by the prac- 
tice of nations, and that no one writer will be found to say 
that it has ; and that it now exists as extended and uncir- 
climscribed as it did a thousand years ago. That the prac- 
tice of few, if any, European nations, has been regulated by 
reference alone to- the original principle ; that it has been 
almost invariably the subject of treaty stipulation, and that 
where a custom has originated it has been rather from con- 
siderations of expediency and policy, than from any obe- 
dience to the supposed obligation in the law of nations ; that 
the customs of the same natrons have been different at dif- 
ferent times on the subject, and that wherever the right has 
been limited in practice, it has not been from any doubt of 
its extension to other cases, but purely from motives of con- 
venience, and that even though it had not, the custom has 
not prevailed po a sufficient extent, or among a sufficient 



37 

number of nations, to have the effect of modifying the cha- 
racter of the original principle, and to make a binding case 
of practice — in a word, that there has been no universal, 
or even general usage on the subject, and that, conse- 
quently, it remains where it was, and what it was, when 
governments were first formed, and national laws sprang 
into existence, to keep harmony in a jarring world. 

Now,sir,if in this recapitulation I have been just, and I have 
claimed nothing that I have not accomplished, I have disposed 
of the question as far as it is affected by the law of nations. 
Like Governor Gilmer,however, I have ever been of the opinion 
that there was no connection between the two subjects, and in 
what I have written so far, I have been influenced alone by the 
possible views of others. It is a question, as he says, purely 
of constitutional construction, and to be determined, as all 
such questions are, by reference to the provision itself, and 
the intention of those who framed it. The latter may some- 
times be gathered from contemporaneous debate, and in de- 
fault of this, is fairly deducible from the condition of the 
country at the time of the adoption of the provision, the pro- 
fessed object of its introduction, and many other circum- 
stances. Resorting first to the most obvious means of interpre- 
tation, let us look at the language of the clause in question. 

It provides for the surrender of all fugitives from justice 
charged with the commission of " treason, felony, or other 
" crime." Now, the first consideration that presents itself to 
the mind, when looking at this clause in reference to the 
requisition of the Executive of Virginia, is, whether the 
act charged constitutes a crime, and to determine this 
I know of no other method than to have recourse to 
the writers on criminal law, or, if you please, to the com- 
mon lexicographers of the language, to see what a crime 
is. Christian says, that the word crime has no technical 
meaning in the law of England, and that it seems, when it 
has reference to positive law, to comprehend all those acts 



38 

xvhich subject the offender to punishment.* By Blackstone, 
Jacob, and other writers, a crime is defined " to be an act 
" committed or omitted in violation of a pubHc law, either 
" forbidding or commanding it."t The term, Jacob goes on 
to say, " may be considered, and is in fact a genus which con- 
" tains under it a great number of species, almost as various 
" in their names as human actions." By the laws of New- 
York it is synonymous with offence, and is defined to be any 
offence for which criminal punishment may by law be in- 
flicted.]: Crime being, then, found to mean any act in viola- 
tion of pubhc law, or any offence for which criminal punish- 
ment may by law be inflicted, the next inquiry that presents 
itself is, what is the law, or body of laws, or public law, 
whose violation is to constitute a crime under this provision 
of our Constitution. The public law of England, says your 
Excellency, and the laws of the civilized world. This is in- 
deed strange ! The public law of England to determine 
what is to constitute a crime as between the different sove- 
reign independent states of the American confederacy. To 
little purpose have we become an independent people 
if, before we can punish a criminal who violates the 
laws of one of these sovereign states, and flees to 
another for protection, we are obliged to show that he 
has offended some law of the British empire. There is 
scarcely a state of the large number that constitute this 
Union, New- York not excepted, that has not taken the 
pains to define expressly the meaning of every word of 
doubtful import in her penal and civil code, and it would be 
strange indeed if the framers of our Constitution should 
have been less wise and provident, and alone, of all the 
legislators of our country, have left those for whom they made 
laws under the necessity of going to a foreign state to ascer- 
tain what they mean when thay speak of a crime. If, 



♦ Chitty's Blackstone, vol. 4, p. 6, note 5. 

t Black, vol. 4, p. 5, and Jacob's Law Dictionary, woriT Misdemeanors. 

: Rev. Stat. vol. 2, p. 587. 



39 

indeed, in determining the meaning of the word felony, 
your Excellency were to contend for the propriety of a re- 
ference to the common law of England, the reason wonld 
be intelligible, if not plausible, for felony, by this law, 
has a technical signification ; but I am utterly unable 
to conjecture any reason ^ for such application in the 
case of the word crime. The clause in the Constitution 
contains not the slightest allusion to this body of laws ; on 
the contrary, as you yourself say, the description is effected 
rather by a reference to the laws of the civilized world, than 
to those of any particular country. Your Excellency seems 
to be aware of the force of this fact, and its utter repugnancy 
to other of your conclusions, and you endeavor to obviate 
its effects by complacently assuming that this was done by 
the convention with a view to avoid the appearance of tech- 
nicality ! ! " If, then," says your Excellency, after remarking 
that by the common law of England one man could not 
have property in another, " we are to look to the common law 
'' for an exposition of the meaning of the convention, (in the 
" clause in question,) it would seem to be quite clear, that 
'' the provision in question was never intended to embrace 
^' such a case as that presented by your predecessor, (Gover- 
" nor Hopkins.) This view of the subject is substantially 
" the same taken in my former communication, where I re- 
" ferred to the universal laivs of the civilized loorld as 
" affording the means of determining the kind of offences 
'' intended to be included in the constitutional provision. 
" The common law of England may he said to define those 
" offences which the laws of the civilized world recognize as 
" deserving punishment at all times, and at all countries. 
" A desire to avoid the appearance of technicality induced a 
" description of these crimes by reference to the laws of the 
'' civilized world, rather than to the system of a particular 
" country, although that system is acknowledged by us to be 
" the most perfect which has existed among men."* 

♦ Vide Appendix. 



40 

However willin<T to concede to your Excellency great 
sagacity in the penetration of the motives of men, you 
will forgive me, if, in the present instance, I am not dis- 
posed to acknowledge your infallibility, and should choose 
to cling rather to the facts, than to your explanation of them. 
In your earlier communications to the Lieutenant Governor 
of Virginia, you maintained, as it appears from this, that a 
reference to the universal laws of the civilized world afforded 
the only means of determining the kind of offences designed 
to be embraced under the provision in our Constitution. 
You are now disposed to change your grounds, and to look, 
not to the universal laws of the civilized world, but to the 
common law of England, which you say, however, is substan- 
tially the same thing, as the latter may be said to define those 
offences which the former recognize as deserving of punish- 
ment, and the convention wished to avoid the appearance of 
technicality, by referring to any particular system, although 
that system should be the source to which the framers of our 
Constitution intended us to apply for the true meaning of their 
language. As to the common law defining -the offences 
which the civilized world agree generally in pronouncing 
worthy of punishment, your Excellency might, I apprehend, 
with equal reason, liave made a similar declaration of the 
Napoleon Code, or the Spanish Recopilacion ; and in rela- 
tion to your conjecture touching the motives of the conven- 
tion, I wonder it did not strike you, that your adversary 
might question the influence which you arc disposed to attri- 
bute to a fear of technicality upon its members, and call upon 
you for the proof thereof. I do not deem it a matter of much 
moment, however, whether you contend for the universal 
laws of the civilized world, or the common law of Eng- 
land, as the proper source to which we are to look for 
the interpretation of phrases used in our domestic Constitu- 
tion, although certainly it would be desirable to know to 
which of the two your Excellency, upon reflection, gives the 
preference. Tlie truth is, sir — I say it with all imaginable 
respect— I am strongly inclined to think that, after writing 



41 

your first letter to the Lieutenant Governor of Virginia, in' 
which you contended for the propriety of referring to the 
universal laws of the civilized world for the means of deter- 
mining the meaning of the clause in the Constitution, that 
you began, upon reflection, to think that the word " felony" 
smacked too strongly of the common law and the laws of the 
States, to admit of any connection whatever with the codes 
of any other countries. Under such circumstances, it became 
necessary to modify this position in some way or other, and 
you could think of no better means than to assume that the 
common law defines those offences which the laws of the 
civilized world recognize as deserving of punishment at all 
times and in all countries. Be this so or not, however, it is 
not material to the argument, nor, as I before remarked, is it 
a matter of any consequence, as far as relates to the case of 
Virginia, whether we ai-e to look to the common law of Eng- 
land, or the laws of the civilized world, for an exposition of the 
meaning of the word crime, except perhaps that property in 
slaves may be said to be sanctioned by the latter, while it is re- 
pudiated by the former. I am willing, then, to consider your 
Excellency as contending for the common law of England 
as the proper source of reference in the present instance. 
The first consequence that flows from this position is, that 
no crime, however flagrant^ however subversive of society, 
and fatal to the public safety in the State where it is com- 
mitted, can be looked upon as such as between the States, 
unless it happens to be prohibited by the laws of Great 
Britain, or the State in which the criminal shall be ar- 
rested. • This, if true, is indeed a singular defect in 
the federal Constitution. Before we proceed, however, 
to ascertain whether it exists, permit me to ask your 
Excellency why you select the common law of England, 
rather than the law of France, of Russia, of Pennsylvania, 
or of Virginia itself, to find out the meaning of the word 
crime, as used in the Constitution. Crime, sir, as I have 
shown you, has no technical meaning by the common law 
of England. Felony has ; and so has treason ; and so has 
6 



42 

grand larceny, and petit larceny, and many other species of 
crime ; but crime itself, as we have seen, is, a generic word, 
.designating all acts committed in violation of the public 
laws. The legislatures of the different States, as before 
intimated, have not been silent on the subject of its mean- 
ing. They do not compel your Excellency to have re- 
course to other States and other codes of laws, to ascertain 
the signification of phrases which they, in common with the 
federal legislators, make use of in the framing of penal sta- 
tutes. New- York has defined expressly, as quoted in a pre- 
ceding page, what is her idea of the meaning of the word 
crime. Here, then, we have the means, much nearer 
home, and equally legitimate, of coming at its true pur- 
port, and New- York certainly has as strong claims to 
have her statute book consulted on this subject as Great 
Britain. If New- York has, however, Pennsylvania has 
equal claims with New- York, and Virginia with Pennsyl^ 
vania, and Ohio with Virginia ; and thus, eventually, we 
should be obliged to have recourse to the penal code of every 
State in the Union, before a fugitive from justice could be 
surrendered. This would be obviously absurd ; but, absurd 
as it is, such are the consequences of a contemplation of any 
other laws than those of the State in which the offence is 
committed, as a means of ascertaining whether a crime has 
been committed or not. It is not within the limits of possi- 
bility, I had nearly said — certainly not of probability, that 
our forefathers would have omitted to give the meaning of 
the word crime, if they had anticipated any such result. 

By way of illustration of your principles on this point, 
let me suppose that your Excellency is called upon by the 
neighboring State of New- Jersey for the surrender of a crimi- 
nal charged w;ith that which is a crime under her laws and 
the laws of this State, but for which the punishment is differ- 
ent. Suppose it were for a robbery committed in New- Jersey 
by a citizen of New- York, and that the crime was punishable 
with death there, as in England, while here only with im- 
prisonment in the penitentiary ; what would your Excellency 



43 

do in such a case ? You could not surrender a citizen of 
New- York, " whose hberty is dear to her, and guaranteed by 
her Constitution," to be hung in New- Jersey, for a crime 
which is only a sHght offence, and punishable with tempo- 
rary imprisonment, by the laws of his own State. This 
would be as bad as to surrender three of the free citi- 
zens of "New- York to Virginia to be punished for acts which 
are, in themselves, innocent or meritorious,^^ or even to Penn- 
sylvania to be tried for ''fornication;'' for the sovereignty and 
dignity of a State seem to me — although I may be mistaken — 
quite as much concerned in shielding its citizens from ex- 
cessive punishments, such as death for venial offences, as 
it is in protecting them altogether from punishment for 
acts which constitute no offence at all by their own na- 
tive laws. The principle is the same in both cases ; and yet 
I do not see how you could refuse to give up the criminal 
to New- Jersey, for robbery is a crime by the common law 
of England, by that of the civilized world, and, what is 
worse than all, by the law of New- York itself 1 fear your 
Excellency would find this rather an embarrassing case 
under your avowed principles, and I do not see how, with 
fidelity to them and the Constitution, you could act, unless 
with the surrender you would couple a condition that the 
punishment should be that of New- York, and thus present 
the extraordinary spectacle of a man tried by the tribunals 
of one State for the violation of its law, and receiving the 
punishment prescribed for such violation by the laws of 
another State, or otherwise prevail upon the Governor of 
New- Jersey to split the difference with you, and inflict a 
new punishment compounded of that of each of the States, 
well mixed up together. I do not design to treat the subject 
with levity, but really, with all respect, these seem to be legi- 
timate consequences of your peculiar doctrines. 

But to go back again to the provision : it provides that 
" any person charged in any state with treason, felony, or 
" other crime, who shall flee from justice, and be found in 
•" another state, shall, on demand of the executive authority 



44 

" of the state from which he fled, be delivered up to be re- 
" moved to the state having jurisdiction of the crime." 
Looking at it, with its language so plain, and its object so 
palpable, without reference to the present controversy, it 
seems difficult to understand how it could be diiferently con- 
strued by any two persons. The first observation that oc- 
curs to one as decisive in considering it, and I would draw 
your Excellency's attention to the fact, is that it contemplates 
the making of the charge in the state from which the crimi- 
nal flees, and before he flees. Now, sir, it is hardly to be 
supposed that an individual would be charged in any state 
with that which was not a crime by its laws ; nor can you 
suppose that he would be exempted from accusations for 
any one of the various species of crimes recognized by the 
same laws. He would be liable to prosecution for all, and in 
no instance is it probable there would be any delay to ascer- 
tain whether that which was an oflence by the laws of the 
state, was an oflence by the laws of England, the civi- 
lized world, and, as a component part of it, the diflerent 
States of the Union. The framers of our Constitution knew 
all this — they knew that the stealing of slaves was a crime 
by the laws of the slave holding states, and that the citizens 
of such slave holding states, and others thereunto coming, 
were liable to commit such crimes ; to be there charged with 
them, and to attempt, like all other criminals, to escape by 
flying from the state ; and yet you say that these men, com- 
ing all from slave holding states themselves, with the excep- 
tion of the delegation from Massachusetts, with these obvious 
reflections present to their minds, purposely worded the 
clause which they were then about introducing in the Con- 
stitution on the subject of fugitives from justice, in such a 
manner as to exclude this, to all probability, large body 
of malefactors : thereby protecting such from punishment as 
were wary enough to escape, and thus indirectly doing all 
in their power to secure immunity to a crime against the 
peculiar species of property, that constituted the great bulk 
of their fortunes, and against the institution of all others upon 



45 

which they had hitherto exhibited greatest sensibility, and the 
security of which, until they, in their calm wisdom, should 
think proper deliberately to abolish it, was most closely 
wound up with their own personal safety and worldly wel- 
fare ! ! I do not know whether your Excellency, upon re- 
flection, will deem this probable or not ; in my opinion it 
cannot be brought within the range of possibility, save upon 
a supposition of such magnanimity in the sacrifice of per- 
sonal considerations to an abstract principle of doubtful 
philanthropy as the history of man furnishes no parallel to, 
or else of such reckless indifference, or mole-like blindness, as 
my hand would tremble to record of those of our great ances- 
tors who satin the Convention of '83. 

Let us see if the clause could have been rendered more 
explicit. Suppose, sir, they had added the words "known 
to its laws," after the close of the first part of the sentence, 
and that the provision ran thus : " Any person charged 
" in any state with treason, felony, or other crime known to 
," its laws, shall," &c., your Excellency certainly could not 
take the objection you now do. The only question under 
such circumstances would be, whether the offence was a 
crime by the laws of the state demanding the fugitive ; and 
yet the provision does not seem to be rendered clearer or 
more intelligible by the additional words, for you cannot 
suppose that a man would be charged in a state with a crime 
that was not knovni to its laws. If charged with any thing 
within its jurisdiction, it would necessarily be for some vio- 
lation of them ; for to accuse a citizen of Virginia of com- 
mitting in Virginia what was not an offence by its laws, but 
an offence by the laws of England, would be indeed an anoma- 
lous proceeding. On the other hand, it strikes me, sir, that if 
the framers of our Constitution had designed to confine the 
surrender to such cases of crime as were recognized by the 
common law of England, or by the laws of the civilized 
world, that they would have made known their intention by 
inserting in a proper place some words expressive of it. 
^he clause might then have been, " any person charged in 



4(5 

" any state with treason, felony, or other crime known to the 
" common law of England, or the civilized laivs of the world 
" generally, who shall flee from justice, shall be surrendered 
" up," etc. This would seem to have been a matter of obvious 
precaution, aware as they were of the existence of slave 
property in every state of the Union except one, and of 
the penal as well as civil laws for its protection. They 
must have foreseen, as before remarked, therefore, that 
there would be criminal prosecutions under these laws, 
as under all others ; that the criminals would escape, 
and that the executives of the different states would be 
called npon for their surrender, under the clause they were 
then about to insert in the Constitution. Under such cir- 
cumstances, to have left it as it is, with the purpose all 
thewhile entertained of excluding from its operation all crimes 
in relation to slave property, would have been such a piece 
of blundering folly or criminal wickedness as can hardly 
be laid at the door of the Convention of those who framed 
our Constitution. Oh no, sir ! no such design, I am satisfied, 
ever entered the heads of the members of that wise and 
patriotic body of men. The first syllable uttered expressive 
of it would have been denounced as treason to the slave 
holding states, and the Constitution, in which, like the 
wooden horse of Troy, it was sought to be concealed, would 
have been indignantly spurned by every representative they 
had on that august occasion. 

To revert once more to the clause, let me ask your ExceU 
lency if you attach no particular importance to the expres- 
sion " other crime," at the end of the first part of it. That the 
Convention who framed it did, is demonstrable from a fact 
which seems to have escaped your research, and has not yet 
been brought to bear on this controversy.* It is that un- 



* Since these sheets have been in the hands of the printer, the writer has seen 
an allusion to the circumstance he is about to narrate in the able argument of 
Senator Paige, delivered lately in the New-York Senate, on this same subject, 
and published in the Albany Argus of 23d April. 



47 

der the old articles of confederation the clause stood, " a 
"person charged in any state with treason, felony, or other 
^^high misdemeanors,^^ tinA. that the words high midemeanors 
were expressly rejected by the Convention, when framing the 
one we are now considering, as having too technical and 
limited a meaning, and the words other crime substituted in 
their place in order, as Mr. Madison says, that the provisiom 
might " comprehend all proper cases."* This is the fact as 
stated by this distinguished reporter, and really, sir, with all 
due deference, seems to be decisive of your doctrine in rela- 
tion to its limitation to crimes of great atrocity, or those deep- 
ly affecting the public safety. With the clause as it stood 
under the articles of confederation, " treason, felony or other 
" high misdeinea7iors,^' it would have been impossible, I 
imagine, for your Excellency to have connected in any way 
the principles of the law of nations. The language is too 
purely technical, and that of the common law of England, 
to have admitted of a reference to the codes of other coun- 
tries. The Convention was aware of this, and as they did 
not design to restrict its operation to these, or any other spe- 
cific characters of crimes or offences, they deemed it neces- 
sary to adopt other language, and therefore selected the 
word crime as being a general one, and embracing, 
according to the best writers on penal jurisprudence, 
and even by the common law of England, all acts 
in violation of the public law of the land. Here then is an 
express abandonment of technical phraseology, as being- too 
limited for the purposes of the Convention and the substi- 
tution of other language peculiar to no code of laws, and 
having no technical meaning, according to the able com- 
mentator on Blackstone, even in that system to which 
your Excellency perseveringly insists we should look for 
the explanation of the phrases of our Constitution. Did the 
Convention accomplish nothing by this change ? Have they 
been foolish enough to leave out one phrase as too restricted,- 

♦ The Madison Papers, vol. iii. 1447. 



48 

ftnd adopt another which means the same thing? In a word, 
does the clause, as it now stands in the Constitution, mean no 
more than it did under the old articles of confederation ? If 
it does, what are the offences which it embraces which the 
old provision did not? I will endeavor to answer these 
questions. Crime, we have just seen by the common law of 
England, has no technical meaning, and embraces ex vi 
termini, all acts without any distinction whatsoever, in vio- 
lation of the public law. Crimes, however, are divided by 
the common law into crimes of a higher and crimes of a 
lower nature, and to the former is given the name oi felo- 
nies, and the latter that oi misdemeanors. The latter, how- 
ever, do not cease to be crimes, and are only misdemeanors 
in contradistinction to felonies, the corresponding class of 
crimes. Misdemeanor, " in the law of England," says Ja- 
cob, "signifies a crime, and every crime is a misdemeanor." 
Blackstone uses crime and misdemeanor as synonimous when 
giving their definition : " Crime, or misdemeanor, (he says) is 
an act," &c., and he afterwards expressly says they are synon- 
imous terms in the English law. If then the proper legal 
sense, and the etymological meaning of crime be any act com- 
mitted in violation of public law, and if it embrace, there- 
fore, as it necessarily must, all offences whatever, as well mis- 
demeanors as felonies, and if the Convention designed to use it 
in its proper sense, then the clause covers the whole class of 
misdemeanors, and your Excellency is not at liberty to de- 
cline a requisition for surrender in any case even of these 
offences. But, you say, and you quote some writer whose name 
you do not give — Blackstone, I presume — to show that crimes 
and misdemeanors have different meanings in common 
usage, the former being used when speaking of offences of 
a deeper and more atrocious dye, while the latter is applied 
to' denote smaller faults and omissions. You then go on to 
affirm that the framers of our Constitution intended to use 



Jacob's Law Dictionary. Word Misdemeanor. 



49 

the word in its restricted sense, and you find, you intimate 
sufficient evidence of this in the Constitution itself, and in 
the pages of Vattel and Grotius ! ! The evidence to which 
you aUude as existing in the Constitution consists in the 
use of the word misdemeanor, after crime, in the fourth 
section, second article ; the language of which provides, that 
" the President, Vice-President, and all civil officers of the 
" United States, shall be removed from office on impeach- 
*« ment for, and conviction of, treason, bribery, or other high 
" crimes and misdemeanors:' " The addition of the word 
" misdemeanor shows," says your Excellency, »' that, in the 
" opinion of the Convention, offences of that nature were 
" not included in the word crimes." I confess, sir, I am a 
little surprised at this idea. Do you really suppose 
the Convention to mean, by the word misdemeanors, in 
this clause, the offences, according to Blackstone, which 
are sometimes spoken of in contradistinction to crimes ; 
and that their intention was that the President of the 
United States, and the other high functionaries of our 
government, should be removed from office on impeach- 
ment and conviction of the smaller faults and omis- 
sions which constitute such offences'? This would be 
indeed treating the highest officers of the government 
with a degree of rigor unknown in any other state in 
the world, and not ^practised in the ordinary relations 
of life between man and man. I wonder that this re- 
flection alone had not been sufficient to have satisfied your 
Excellency that the Convention could not have meant what 
you say it did by the word misdemeanors ; a moment's 
consideration or research into any book on the criminal law 
of England must, I apprehend, have placed the matter beyond 
controversy. Theexpression high crimes and misdei?iea?iors, 
is one of the most common in the English law, made use of in 
every impeachment before the House of Lords in England, 
and 1 have never heard its meaning, as applying alone to great 
and enormous ofiences, questioned, save by your Excellency. 
The English law knows no impeachment, I humbly venture 



50 

ta say, for a lesser fault or minor offence. " An rmpeach- 
" ment," says Blackstone, " is a presentment to the most 
'' high and supreme court of criminal jurisdiction^ by 
" the most, solemn grand inquest of the kingdom," foF 
treason, felony, or other crimes and misdemeanors. " A 
" commoner," he jroes on to say, " cannot^ however, be 
'• impeached before the lords for any capital offence, but 
"only for high Tnisdemeanors ; a peer may be impeached 
" for any crime.* The articles of impeachment are a kind 
" of bill of indictment found in the House of Commons, 
" and afterwards tried by the House of Lords ; who are in 
" cases of misdemeanors, considered not only as their own 
"peers, but as the peers of the whole realm." "It is a 
" custom," says Jacob, " derived from the Constitution of 
" the ancient Germans, who sometimes, in their great coun- 
" cils, tried capital accusations relating to the public." Licet 
apud concilium accusare quoque et discrimen capitis inten- 
dere. Tacitus de Mor. Ger. 12. It is thus clear, that having 
refererjce to the nature and character of the peculiar spe- 
cies of prosecution termed an impeachment under the Eng- 
lish law, as well as to the great tribunal before which it 
takes place, it would be absurd to speak of an impeachment 
for one of the lesser offences or smaller faults, and I 
apprehend it must be equally so under our Constitution. 
This would be enough of itself to determine the question. 
But this is not all. In the language just quoted your Ex- 
cellency will find that Blackstone makes use of the very term 
misdeTneanors, or high misdem-eanors, to express crimes of 
the very highest character, offences more enormous even 
than those for which capital punishments alone are inflicted. 
In addition to all this, we find Mr. Christian saying expressly, 
in one of his notes to Chitty's edition of Blackstone, that 
when the words high crimes and misde'mea?iors — the words 
in the Constitution — are used in prosecutions by impeach- 



♦ Vide 4 Black. 260i 



51 

me7ii, that the words high crimes have no definite significa- 
tion, but are used merely to give greater solemnity to the 
charge.* Here we have the authority of this distinguished 
commentator to the fact, in opposition to your Excellency, 
that high crimes, when used as in the Constitution, in 
matters of impeachment, mean nothing, have no definite 
signification, and are merely used to give greater solemnity 
to the expression, and that the only word which does mean 
any thing, and which bears the sense, and makes the potency 
of the phrase, is the very word misdemeanors, which you 
contend means nothing more, in a similar phrase in our 
Constitution, than those lesser faults or minor offences, which 
the law punishes with a small fine and short imprisonment ! ! ! 
I may safely conclude, at least, after this, I think, that the 
Constitution furnishes no evidence that the word crime is 
used in contradistinction to misdemeanors. Let us see now 
how the supposition can be reconciled with the act of the 
Convention just alluded to. If this body used crime in 
this sense, it can only be by reason of the distinction 
to which Jacob alludes when he says : " Every crime 
" is a misdemeanor, yet the law hath made a distinc- 
" tion between crimes ^f a higher and a lower nature, the 
" latter being denominated misdemeanors, and the former 
'• felonies."t It appears, however, that by this distinction 
all crimes are felonies, and that the word felonies, therefore, 
comprehends all offences which are crimes in contradistinction 
to misdemeanors, while it is only those offences which being 
of a less atrocious character than crimes that are denomi- 
nated misdemeanors. What then did the Convention mean 
when they struck out the words high misdej7ieanors, and 
substituted "other crime?" Why did they not let the 
phrase remain as it was, or, after striking out high misde- 
meanors, why did they add any words at all, if they meant, 



* Vide Blackstone's Com. vol. 4, p. 6, note 4. 
t Jacob's Law Dictionary, word Misdemeanor. 



52 

by the word crime, as you say they did, only offences of an 
atrocious character, and if " felonies," being synonimous 
with it in the English law, would have expressed all these. 
Treason and felony, under such circumstances, would 
have covered all that, according to your views, the Con- 
vention designed to embrace. Changing, then, the phrase- 
ology of the old clause, and substituting the words " other 
" crime," would have been a matter of such palpable folly 
as one can hardly attribute to the framers of our Constitu- 
tion ; and were they alive now they would not be much com- 
plimented to be told that they had been guilty of it 
by reason of their ignorance of the meaning of the words 
they were using in their legislation ; and that a phrase 
of which they took the trouble expressly to alter the 
language, remains the same, and means but what it did 
before. But this cannot be so, sir. We must believe 
that the Convention were aware of the full meaning of 
the word felony in the English laws, because they could 
not know that the word crimes was ever restricted to 
offences of a higher nature, as you contend has been 
done by them, without being aware, that whenever this 
was the case felony was synonimous with it, covering 
every offence that it did, and that tlie term misdemeanors 
embraced all the other offences that remained, and were not 
crimes. We are driven, then, to suppose, that when the 
Convention struck out the ievm high misdemeanors, as being 
too technical and limited in its meaning, and adopted the 
present expression of <' other crime" in lieu of it, in order 
to comprehend all proper cases, that they must have meant 
thereby to embrace some offences which were x\oi felonies, 
and consequently 7iot crimes, and, therefore, necessarily mis- 
demeaJiors, unless there are some intermediate offences ; and 
if there are, I should be glad if you would put your finger upon 
them. I may over estimate the force of this reasoning, but 
I humbly submit to your Excellency whether it is not con- 
clusive. One thing at least you will not deny, and that is, 
that the phrase, as it stood under the old articles of confede- 



53 

'^ ration, treason, felony, or other high misdemeanors," or even 
with the words high Tnisdemeanors omitted, would have com- 
prehended all the crimes you enumerate as coming within the 
purview of the Constitution, such as " treason, murder, arson, 
'' burglary, forgery, perjury, rape, incest and bigamy :" for I 
take it for granted that you will admitthat there is no onecrime 
of all these that is not a felony or high misdemeanor at com- 
mon law. When, then, they struck out high misdemeanors, 
and substituted other crime, they must necessarily have de- 
signed adding some offences which were not comprehended by 
the old clause, and consequently are not within your catalogue. 
What these additional offences are, if not misdemeanors,! must 
again apply to your Excellency to know. If it could be neces- 
sary to offer any thing farther in confirmation of conclusions 
which are so self-evident, it might be found in reflecting upon 
the extreme probability of the Convention's adopting some 
general comprehensive phrase like the present in lieu of the 
language of the old provision under the articles of confedera- 
tion. They were well aware of the various legislation of the 
states, and the various phraseology of their statute books, and 
providing a clause, as they were about to do for them, it would 
have been very absurd to have retained language which, hav- 
ing a technical meaning under the system from which it was 
derived, might very naturally have a technical meaning 
among them to be variously used. And now, sir, permit 
me to say, I do not perceive, with your Excellency, any 
great objection to the extension of the principle to misdemea- 
nors, and indeed every case of violation of the municipal 
law of the state. It is done, Vattel says, in many states 
which border upon each other, and have very friendly 
relations. Switzerland does it, as appears by your own ac- 
knowledgment, whether by means of a constitutional pro- 
vision, or from long established usage, is a matter of no mo- 
ment. If Switzerland, then, carries it thus far, composed 
as it is of thirteen republics, only joined together, as it were, 
by a league offensive and defensive, the parties to which, in 



54 

every thingthat does not touch the liberties of each other, are as 
sovereio-n and independent as great Britain, and have religion 
and laws as opposite as those of any two countries in Europe,* 
it would not seem extraordinary that the same practice should 
be pursued in the different states of this Union, who are, to 
all foreign purposes, one people ; who have a common consti- 
tution, and a common government, the laws of which act 
upon them, unlike those of the Swiss Diet, in their personal 
capacity as citizens, and to which they have delegated the 
chief attributes of their sovereignty. But Switzerland is 
not the only country in which this principle is thus ex- 
tended; the United Provinces have deemed it proper to 
give it an equal comprehensiveness in their intercourse 
with each other. As far then as example goes, your Excel- 
lency finds it in the two governments of Europe that bear 
the closest, and I may say the only resemblance to our own ; 
and when it comes to considerations of expediency and 
justice, I am the more surprised that your Excellency 
should take the views you have done. I confess it does not 
seem to me so horrible a thing to surrender a citizen of New- 
York to be tried for every violation of the laws of one of 
her sister states, even though that violation be " fornication," 
or " adultery," or even any thing less censurable that consti- 
tutes no offence by the laws of New-York. Fornication 
and adultery are both crimes by that book which most of us 
bow to as authority, but whether they are or not, or whether 
they are by the laws of New- York, is a matter of no moment. 
It is enough that they are crimes by the laws of Pennsylva- 
nia, and that he who committed them did it within her terri- 
tories, while he was under her own laws, and within her 
jurisdiction, and in defiance of her express commands and 
her public policy : and New- York, in the language of Vattel, 
is bound to presume that " she has acted with justice." 
" and not by her doubts or suspicions to break up an institu» 



♦ Vide Planfa'e Switzerland, vol. 2, p. 292. 



55 

" tioii or custom so necessary to preserve good harmony be- 
" tweeu states, as the surrender of fugitives from justice in 
" every case of offence."* Your Excellency is not at liberty 
to suppose that the different states of the Union would ever 
make it a crime " to omit paying a debt," or " to neglect 
" going to church," or to " look upon a magistrate," or " to 
'• shelter and clothe a free negro," or that they will declare any 
other " harmless act a felony." You surely cannot be justified 
in such an expectation from Virginia making it a felony to 
steal one of her slaves, nor can you be from New-Hampshire 
and Pennsylvania affixing a slight penaUy to fornication and 
adultery, absurd as it may be, as long as you recollect that 
the Mosaic law prohibits both ofiences ; and if you were, and 
the justice of a man being punished for the violation of the 
laws of a state which he has been permitted to enter upon 
the implied promise that he would obey them, would 
not justify the act and make a state indifferent about the 
surrender of the offender, the possible result can constitute 
no just objection to the principle. Yattel contemplates the 
possible abuse of even letters rogatory, for, he says, if a 
" continued experience shows the sovereign," le superieur 
de Vaccuse, " that his subjects are harassed by the magis- 
" trates of the neighboring states by whom they are sum- 
" moned to appear before, he will be permitted, doubtless, to 
" think of the protection due to his people, and to decline 
" obeying the letters rogatory until they explain the abuse and 
" correct it." That I am correct, however, in concluding the 
provision in our Constitution to Vi\\^\y\o misdemeanors I have 
at least the authority of the supreme court of this state in 
the case of Clark, so often referred to in the correspondence 
between you and the Governor of Virginia. Commencing at 
the bottom of the 221st page of the opinion of the court, 
delivered through Chief Justice Savage, your Excellency 
will find the following language : " It was also objected 



* Vide Vattel, lib, If, c. vii. § 76. 328. 



56 

" that a crime of greater atrocity" (the crime with which Clark 
was charged under the laws of Rhode Island, was that of 
fraudulent manao^ement of a bank, the penalty for which 
was a fine of $5,000) " was intended by the Constitution 
" than is here charged. It seems that when proceedings 
" are instituted by the comity of nations, they apply only to 
" crimes of great atrocity, or deeply affecting the public 
" safety. 1 Kent, 35. The statute of our state to which 
" Chancellor Kent refers has been repealed, and I have not 
" found the substance of it re-enacted in the Revised Sta- 
" tntes, but what may have been intended as a substitute ; 
"that certain offences committed out of our jurisdiction may 
" be punished within it. 2 R. S. 698, § 4. With the 
" comity of nations we have at present nothing to do, unless 
" perhaps to infer from it that the framers of our Constitu- 
'•' tion and laws intended to provide a more perfect remedy / 
" one which should reach every offence criminally cogniza- 
" ble by the laivs of any of the states. The language is, 
•' treason, felony, or other crime ; the word crime is synoni^ 
moiis with misdemeanor. 4 Black. Com. 5, and includes 
every offence below felony punished by indictment, as an 
offence against the public."* 

Here, then, 1 humbly apprehend, we have, after argument 
and due consideration, the solemn judgment of the Supreme 
Court of this state to two points involved in, and, if I mistake 
not, decisive of, the controversy between you and Virginia. 
First, that the word " crime" in the constitutional provision 
touching the surrender of fugitives from justice, is synoni- 
mous with misdemeanor, and farther that it reaches not only 
such offences as are misdemeanors in all the states, or at 
common law, but any and all acts that are misdemeanors, 
or, in other words, criminally cognizable, by the laws of any 
one of the states. Now, sir, you cannot object that these 



In the Matter of Clark, 9 Wendell's Rep. 221-2. 



57 



questions were not raised in the progress of the discussion, 
and that these opinions, therefore, are mere dicta. It was 
distinctly alleged, in the very outset of the argument of 
Clark's counsel, that the clause in the Constitution contem- 
plated a crime of greater atrocity than the one alleged to 
have been committed under the laws of Rhode Island. They 
assumed, indeed, as your Excellency has done, that it ap- 
plied only to crimes of the highest nature, and " universally 
so considered ;" and as the offence charged in the certificate 
of the Rhode Island Governor, was only a civil one, 
or, if criminal, punishable with a fine, that it could not 
be said to come within its contemplation. Under these 
circumstances the court found it necessary to pass upon these 
points. They did so, and their opinion, as before quoted, was, 
that it was not necessary that the offence charged should be 
an atrocious one, nor was it necessary, whatever it might be, 
that it should be an offence universally so considered, or by 
the laws of all the states, but that it was enough if it were 
an offence, whether misdemeanor or felony, criminally cog- 
nizable by the laius of any of the states. 

Does not this language cover the case of Virginia 1 Is 
she not here sustained in her demands even by the court 
next one of the highest resort in that very state upon whose 
justice she urges them ? Can any thing be clearer 7 Can 
any thing more be desired by Virginia? Is not the 
offence with which Johnson, Smith, and Gansey, are 
charged, and for which they are demanded at your 
hands, an offence '• criminally cognizable by the " laws 
of one of the states," yea, by the laws of nearly one half 
of the states that compose our confederacy, and not 
merely a misdemeanor, but a felony ? It can scarcely be 
necessary to stop to answer these questions, and yet your 
Excellency, on this very case of Clark, makes use of the fol- 
lowing language in your letter to Governor Gilmer.* " The 



Vide Appendix. 



58 

" question vvheilier the alleged offence was a crime recog- 
" nized by the laws of New- York, was not even raised in the 
" case, and was not discussed by the court. In fact the 
"offence was one familiar io our laws, and there was, there- 
" fore, no occasion io exajiiine the nature of the crime 
" changed. I have been unable to discover, in the reason 
"assigned by the learned Chief Justice, any ground for 
" supposing that the Supreme Court intended to intimate 
" that the Governor of this state was bound to submit his 
" judgment in regard to the class of cases falling within the 
" constitutional provision to that of the executive by whom 
" the requisition was made. Indeed the principle that the 
" decision upon the obligation to surrender fugitives de- 
" manded rests with the executive upon whom the demand 
" is made, is recognized not only in the case of Clark, but in 
"every case in which the question could be raised." 

At language like tiiis, with tlie case of Clark open before 
you, I must be permitted, with all proper respect, to express 
my unbounded astonishment. The question whether the 
alleged offence was a crime recognized by the laws of New- 
York " was not raised," it is true, in so many words, but as I 
have before stated it was distinctly maintained by the coun- 
sel of Clark, and urged upon the court throughout the whole 
argument, that the offences which the clause in the Consti- 
tution contemplated were those alone of an atrocious nature, 
or deeply affecting the public safety, and universally so 
considered, and could not, therefore, apply to an offence 
which was not punishable in all the states, and even under 
the laws of Rhode Island, was but a civil one, and the court 
could not have decided these points without deciding this 
very question, whether raised or not. There were no 
means by which it could have sustained the executive, and 
refused the discharge, without adjudging the meaning of 
the word crime in the Constitution to be a misdemeanor, 
and that it. applied to every act, whether misdemeanor 
or not, made criminally cognizable by the laws of any one 



59 

of the states. It was not pretended by the attorney for the 
commonwealth, that the crime alleged in the certificate of 
the Governor of Rhode Island to have been committed, was 
a crime at common law, in the states generally, or by the 
laws of New- York, and therefore a proper subject for the 
operation of the clause ^ nor are such facts alleged in the 
opinion of the court to sustain its decision. It was absolutely 
necessary, therefore, in order to meet the points of the coun- 
sel for Clark, and to refuse the application, that the court 
should determine that the clause applied to every offence 
made criminal by the laws of any of the states, and that, 
consequently, whether it was so at common law, or by the 
laws of the state of which the demand was made, was a 
matter of indifference. The question, then, " whether 
" the alleged offence was a crime recognized by the laws of 
" New- York," though not distinctly " raised" or " discussed," 
was necessarily passed upon by the court, and must be con- 
sidered as settled wherever the decisions of the Supreme 
Court of the state are considered as authority. This view 
of the case, and the judgment of the court, will be placed 
still further beyond the reach of controversy, if I may be 
permitted to doubt the correctness of what your Excellency 
alleges when you say that the offence with which Clark was 
charged " was one familiar to the laws of New-York, and 
"that therefore there was no occasion to examine the nature 
" of the crime charged." I will not venture to contradict 
one whose knowledge is far greater than any I can lay claim 
to • but really, sir, I have been utterly unable to discover any 
trace of such a crime as the mismanagement of a bank in 
any statute of New-York, however familiar the public here 
and elsewhere may have become with such offences of late 
years. Whether there was " no occasion to examine the 
*' nature of the crime charged," or not, I will leave it to you, 
and the judges who sat in the cause, to determine. Probably 
there would not have been, if they had agreed with your 
Excellency on the subject of the knowledge which our laws 



60 

had of the offence ; but one thing is very certain, and be- 
yond doubt, that the court did examine into tlie nature of 
the crime charg-ed, and very mniutely too.* If i/on infer 
tliat there was no occasion for examining into the nature of 
the crime charged, because the offence was one familiar to 
our laws, surely if it is proved that the court did examine 
into the nature of the offence charged, /may be permitted to 
infer that the offence was not familiar to our laws ; at all 
events, that it was not familiar in the opinion of the judges 
of this court. If I am correct then in supposing the offence 
not to have been known to the laws of New- York, the con- 
clusions which I have expressed are even more strengthened 
yet ; for if it was not an offence by the laws of New- York, 
it must have been known to the court, and the opinion that 
they considered the bearing which this fact had upon the 
question, and deemed it not at all afTected by it, gains such 
force as to admit no longer of being assailed. 

Such, I understand, construed with all possible stringency, 
to be the case of Clark, as decided in the Supreme Court of 
this state. But to proceed, and come now, although at a 
late hour, to what I deem to be the true consideration on 
which this matter hangs, let me ask your Excellency how 
you can possibly imagine that it was the object of the Con- 
vention who framed our Constitution to exclude from its 
operation all crimes thereafter to be committed against the 
existing laws for the protection of slave property ? Pause 
for a moment, sir, and look at the condition of this country 
at the time of the adoption of the federal Constitution, and 
the circumstances which attended the introduction of the 
clauses in relation to property in slaves. Under the old ar- 
ticles of confederation, the states being only bound together 
by a sort of league oflcnsive and defensive, it was not thought 
necessary to say any thing on the subject of the peculiar insti- 



♦ " Ii has been objecfcd that no offence has hern comniitled. If we look into 
the staiiuc of Rhode Island, we find a criminal oirence," «Stc. Ch. J. Savage's 
Opinion, p. 221. 



61 

tutions and laws of each state, and great, very great difficulty 
was experienced on the subject of runaway slaves, by reason 
of the absence of any provision like the one which exists in the 
present Constitution, authorizing their reclamation in other 
states. When it was resolved, however, to adopt a more perfect 
and permanent form of government, it became necessary to pro- 
vide a remedy for this, and consequently to consider the ex- 
istence of this peculiar species of property; and the result, 
after an angry and long continued debate of many weeks, 
was the introduction of the second sections of the 1st and 
4th articles of the Constitution ; the one providing for the 
apportionment of representation and direct taxes among the 
different states, and the other forbidding the states to inter- 
fere with the relations of master and slave,and requiring them 
to deliver the latter up. The first provides, " that reprdsen- 
" tatives and direct taxes shall be apportioned among the seve- 
*'ral states which may be included within the union according 
" to their respective numbers, which shall be determined by 
*' adding to the whole number of free persons, i7icluding those 
" bound to service for a term of years, and excluding 
" Indians not taxed, three fifths of all other persons." 
" The last provides "that no person held to service or labor 
" in on^ State under the laws thereof, shall be discharged 
*' from service in consequence of any law or regulation in the 
" State to which he escapes, but that they shall be delivered 
" up to the person to whom such service or labor is due." 
Here, sir, then, beyond all peradventure, is a distinct and 
solemn recognition of the institution of slavery, and not in 
mere words of acknowledgment only, but in the shape of con- 
stitutional provisions for the avowed object of its protection ; 
for that that was the purpose ot the first clause just quoted, 
is placed beyond controversy, from the declarations made at 
the time of its adoption by the representatives of theslavehold- 
ing States. It was introduced and urged upon the Convention 
as a measure imperiously called for, and indispensably neces- 
sary to the security of this species of property; and while all 
lamented the necessity of such a precaution, they did not 



62 

attempt to disguise from the Convention their unchangable 
resolution to adopt no form of government into which it did 
not enter as a component part.* Could any thing short of 
direct legislation be more plainly eloquent of the intention 
of the Convention in relation to skive property? Does not 
the language of Mr. Randolph and the other Southern 
members constitute a preamble, as it were, to this clause, 
declaratory of this as the object of its introduction? It 
cannot be affirmed that they are represented in any other 
light than as property. It cannot be as free men, because 
they are to be added to the persons designated as free men ; 
nor can it be as persons born to service, for all these are to 
be included with th<^ free men ; nor can it be as Indians, 
because they are expressly excluded ; and I have yet to learn 
that there were any otii^r class of human beings in the United 
States at the time of the adoption of the Constitution, than 
free men, including apprentices born to service, Indians, 
and slaves. There is no evading the force of this language 
of the Constitution, whatever may be thought of the other 
two provisions in question. But this was not all. They 
were not satisfied with throwing the safeguard of the Con- 
stitution around slave property in the place of its exist- 
ence, by providing for its distinct representation upon the 
floor of Congrv'ss, as long as a vestige of it remained in any 
part of this expanding empire. They demanded that the 
■arm of the federal government should follow it wherever it 
might be found, even within the territories of their sovereign 
sisters, and be ready, in the hour of danger, to defend it from 
•the assaults of its enemies; and the states therefore were forbid- 
den to pass any laws in subversion of the master's rights, and 
were required to lend their civil power, and open their courts 
of justice for their vindication. Is it possible for the imagina- 



* " Express security ouglit to be provided for including slaves in the ratio of re- 
" presentation He laineniKJ that such a specie of property existed ; luit as it did 
••' exist, the holders of it would require this security." Speech of Mr. Randolph, 
•of Virginia. Madison Papers, vol. 3, ,p. 10S3. 



63 

tion to conceive stronger evidence of the intention of the 
Convention to recognize property in slaves? And yet you 
say it never designed that the provision in relation to the 
surrender of fugitives from justice should extend to crimes 
committed against this property— a species of property 
constituting, in a great measure, the wealth of twelve 
states out of the thirteen of the Union, distinctly guard- 
ed by constitutional provisions, one providing for its spe- 
cific representation, and the other its inviolability, even 
within the territorial limits of the single free state, and 
yet left out of all consideration when framing a clause to 
punish crime against property and to prevent the escape of 
fugitives from justice ! ! The civil laws of the states 
constituting and providing for the protection of this anoma- 
lous species of property, not only recognized, but fortified 
by additional provisions ; and yet the criminal laws which 
participate in giving its security expressly repudiated! ! "The 
" better to secure and perpetuate mutual friendship and inter- 
'' course among the people of the different states,"* and for 
the more effectual execution of the laws for the protection 
of property, and the security of the citizen, the people of the 
United States adopt a clause providing for the surrender of 
fugitives from justice in all cases of crime, and yet exclude 
from its operation the offences connected with that species of 
property which constitutes a large portion of the wealth of a 
majority of themselves, and upon the rights connected with 
which they have exhibited more sensibility than upon any- 
other subject ! ! They are property to all intents and purposes ; 
represented as property ;t property in their own states ; proper- 
ty all over the United States, wherever they may flee, as be- 
tween their masters and themselves, and between their mas- 



* "Property he did not tliink to be the rule of representation ? Why, then^ 
should the blacks, who were property in the South, be in the rule of representa- 
tion more than the cattle and horses of the North V Speech of Mr. Gerry of 
Massachusetts. Mad. p. 842. 

t Articles of Confederation, Ar\. i. 



64 

ters and the otiier state governments ; and as long as the Con- 
stitution stands, no legislature, whether it be that of New- York, 
or any other, can touch the relation, and yet they cease to be 
slaves, and it is no crime to steal them, whenever it shall suit 
the sovereign will of the Executive of any of the states to say 
so. Miserable mockery would a Constitution prove that could 
tolerate such consequences as these. Dark the conspiracy 
against the rights of their southern brethren was that of 
these members of the Convention of '83, who meditated them 
and disclosed them not. Will you libel the memory of any 
of the great men of that august assembly by attributing it 
to them? If ever there was an occasion on which the bad 
passions of the human heart were at rest, and the nobler 
feelings alone awake, it must have been when our fore- 
fathers met in council at the close of the revolutionary 
struggle. They came to exchange greetings upon their 
escape from its terrors. Gratulations that they had achiev- 
ed that glorious purpose which had nerved them for many a 
long year, and in many a dark hour of adversity. They 
were full of a solemn sense of gratitude to the Almighty 
Being who had watched over them so far with his protecting 
hand. They had come to give a government to an emanci- 
pated people about to take their first step in the career of 
their newly acquired liberty. The divinity of Washington's 
virtues, and the majesty of his character, were there among 
the influences of the hour 1 He, too, was a slaveholder, and 
it was of his property they were legislating ! 

But to proceed; the languageof the 2d section of the 4th arti- 
cle, before alluded to, is, that "no person held to service or labor 
in one " stsite^under the laws thereof ,sha.\\ be discharged, "<fec. 
In this case you admit that " the laws of the states concern- 
" ing slavery are recognized by the Constitution." Let me 
ask you, then, what laws are here recognized ? Laws, I take 
it, establishing a relation of master and servant between the 
white and black man. Where are we to look to ascertain 
the nature of this relation ? To the laws, says the Constitu- 
tion, from whence the slave and master come. By what 



65 

word is this relation characterized under the laws of such 
state? Slavery, What is protected under such clause of 
the Constitution ? The rights constituting this relation, and 
springing from it. What are these rights ? To hold another 
in perpetual servitude, and enjoy unmolested the fruits of 
his labor. This the Constitution has solemnly guaranteed 
to the slaveholder. This is the Constitution of the people 
of New- York, and they are bound by this guarantee, not 
only as far as they are concerned, but as against every other 
state of the Union. How are these rights, thus guaranteed 
to the slaveholder, protected in the state where they are en- 
joyed ? By civil laws giving property in the slave, and by 
penal laws punishing those who attempt to steal it from him, 
or take it away forcibly, or injure it in his possession. The 
civil laws, then, and consequently the principle that one 
human being can be the property of another, are recognized, 
and a provision is adopted to provide for their effectual en- 
forcement all over the Union, and the different states are for- 
bidden ever to interfere with them. The penal laws, how- 
ever, which are as essential to the protection of this right of 
property, 'thus solemnly guaranteed and guarded by the 
Constitution, and a right to the enforcement of which is 
among the rights of the master under the laws of the state 
from which he and his slave come, are to be regarded as a 
dead letter, because the Constitution nowhere recognizes 
the principle that one man can be the slave of, or stolen from 
another ! Rights are secured and protected, and yet the vio- 
lation of them is not to be punished ! The master's claim to 
his slave can be enforced any where in this wide spread 
confederacy, and no human power dares come between them, 
and yet this master cannot bring the felon to punishment 
who robs him of his slave ! Such are the glaring inconsisten- 
cies of your doctrines. To do your Excellency justice, 
however, I must confess I can nowhere find that you dis- 
tinctly affirm that the Constitution of the United States does 
not recognize property in slaves, although 1 have so far as- 
sumed such to have been your opinion, because I could not 
9 



66 

believe that you could doubt the paramount authority of the 
Constitution over the laws of New-York, and if it did sanc- 
tion such principles, you could not but acknowledge 
that it would matter but little whether they were con- 
demned or approved by the laws of the state. Your 
language on your subject is as follows : " In one state it has 
" been already declared by its fundamental laws, that no 
" human being can be held as a slave within its boundaries. 
" The same principle is established in this state, except so 
" far as the Constitution and laws of the United States re- 
" (^uire the surrender of a fugitive slave held to service or 
" labor in another state, by the laws thereof, whei] demanded, 
" and upon proof that he is a slave." This language might 
be, perhaps, considered as admissive of the fact, rather than a 
denial of it. I can find none more explicit. Your object seems 
rather to have been to show, by reasoning of various kinds, 
that the constitutional provision did not embrace crimes in 
relation to slave property, than to deny that the Constitution 
any where recognized the principle of slavery. Your Ex- 
cellency repeats, however, over and over again, that the laws 
of the state of New- York no where admit the principle that 
one person can be the property of another, and consequently 
cannot admit the possibility of one man being stolen from 
another. Now, that the present laws of New-York, passed 
by them as a state, do not admit these principles, I will 
readily concede. That the people of New-York, together 
with the otlipr " people of the United States" who adopted 
the present federal Constitution, did not admit such princi- 
ple, and do not still, I am inclined, with all due respect, 
to deny. " We, the people of the United States, in order 
" to form a m.ore perfect union, establish justice, insure 
" domestic tranquillity," do ordain and establish this " Con- 
"stitution." This is the language of the preamble to 
that celebrated instrument. By that instrument the right 
of one man to hold another as property is distinctly 
recognized, and provision is made, as we have just seen, to 
secure the inviolability of such right within the jurisdiction 



67 

of every sovereign state in the Union, whether the domestic 
laws of such state recognize it or not. The people of New- 
York, in their general capacity as people of the United 
States, to adopt the northern construction of the Constitution, 
or the state of New- York, in her sovereign capacity, in the 
southern view of the question, adopted this Constitution for 
their government. It is as essential a part of the govern- 
ment of the people of New- York, as our own state Consti- 
tution. It is, indeed, perhaps, more so, because the obliga- 
tions which it imposes are paramount and supreme over 
those which her own state constitutions and laws impose, and 
New- York can never, while she remains within this Union, 
pass any law incompatible with any one of them. The people 
of New- York, by this integral portion of their complex govern- 
ment, then, have distinctly recognized the principle that one 
man can be the property of another, and bound themselves by 
an obligation always to recognize such a principle. They go 
farther — they not only recognize such a principle, but they so- 
lemnly enter into a compact that their own domestic tribunals 
shall ever remain open for the assertion of this principle, and 
the enforcement of the rights consequent upon its recognition. 
But perhaps I am in error when I imagine this to amount 
to a recognition of the principle. It may be that a nation 
may throw open her courts for the assertion of a princi- 
ple, and yet be said not to recognize it ; for the vindication of 
the master's rights to property in his slave, and yet not be sup- 
posed to recognize the principle that one man can be the 
property of another. I will not undertake to affirm that this 
is not so, but I humbly apprehend that this is not the view 
which our English forefathers took of recognition. It 
will be readily conceded that the common law of England 
does not recognize the principle, to use your Excellency's 
language, " that one person can be the property of another ;" 
but is there any court within the mighty empire of Great 
Britain where the American slaveholder can be heard in 
support of his right to property in his runaway slave 1 I 
humbly apprehend not, sir. The principle of liberty 



meets the latter upon his landing on English ground, 
and dissolves his chains like the breath of some enchan- 
ter. He is ever after a free man, and moves guarded 
by the spirit of the English Constitution. No such prin- 
ciple meets the Virginia slave when he touches the soil of 
New- York. Free as is the air of this sovereiffn comrnon- 
wealth it loosens not his fetters. They still clank as he 
treads the soil, and no human power, save his master, can 
unbind them from around him. The fanatic may rave, and 
misguided humanity itself weep, but it will be all in 
vain, for the stern genius of the laws keeps watch by his side 
till his master comes. His presence announced, and he is 
handed over through this omnipotent influence, though he 
have flown for refuge into the sanctuaries of your justice, 
and crouched at the very feet of your judges ! And this is not 
strange. The same flag floats here over him and his mas- 
ter that waved its ample folds over their common home. 
The latter is still among his fellow countrymen who signed 
a solemn compact with him for the security of his property, 
and the government which sprang into existence from that 
compact still stretches its broad and beneficent arms over 
him. That compact still stands the paramount law of 
the land, and the signature of the people of New-York to it 
yet remains uneflaced ! It is as binding upon her now as it 
was the hour slie signed it, and Virginia will never release 
her from its obligation. And let it never be forgotten, sir, 
that at that time New- York was herself a slave holding stale. 
The clash of chains was heard, with its gloomy dissonance, 
all over her border, and no voice was raised in condemnation 
of the now never-enough abused principle of property in 
human beings. She, at that time, whatever may be her feel- 
ings now, had no sanctimonious horror of incorporating 
such a principle into the Constitution of the United States, 
particularly as she did not thereby perpetuate slavery within 
her own limits, or in the limits of her sister states, but only 
gave security to rights which she, in common with her fellow 
citizens, then enjoyed. And 1 may be permitted to add, that 



69 

the citizen of New- York who had at this period proclaimed his 
abhorrence of a principle which had been incorporated ever 
since 1625 with the laws of his state, must have been far 
in advance of his age. You may find a few instances, per- 
haps, in the world's history, of men magnanimous enough 
in legislation to sacrifice their present personal interests to an 
abstract principle of questionable humanity, but I much 
doubt whether you will find one entire nation of such sublime 
patriots. The construction of the constitutional provision 
which you contend for, strikes at the very foundation of 
slavery ; and the people of New- York, that you supposed to 
have voted for it with this view in 1787, did not, /or twelve 
years afterwards, take any step for the final removal, or 
the intermediate mitigation of this evil within their own 
territory ! !* If New- York, then, at a period when she had 
peculiar domestic interests to consult, and her own laws re- 
cognized the abominable principle, that one human being 
could be the property of another, did not deem it incom- 
patible with her feelings and religion to incorporate such a 
principle with the Constitution she was then about framing 
with her sister states, she must not be surprised if these sis- 
ter states should now hold her to her act, even though a 
change of principle should have followed tiie change of in- 
terest. The moment that the people of this state proclaim, 
through their proper organ, that they repudiate any such 
principle in the Constitution, and refuse to be bound by it, 
that moment they violate the Constitution, rend asunder 
their solemn compact with their fellow citizens of the other 
states, and put themselves without the pale of the Union. 
It will be the first measure of practical abolition, on the part 
of a state, and accomplished, too, through means of a nul- 
lification which presages more danger, as the violation of a 
vital principle of this Union, and the vested rights of a large 



* Vide Kent's Com. vol. 2, p. 256. Moulton's History of New- York, therein 
quoted, vol. 1, p. 373. 



70 • 

portion of its members, than any which has yet appeared to 
threaten the stability of oiir institutions ! But I will never 
believe, sir, that it is the purpose of the people of New- York 
thus deliberately to violate their constitutional obligations; 
and without violating them, permit me again to add, they 
can never refuse to recognize, as between themselves and 
their fellow citizens of the slaveholding states, the principle 
of property in slaves. And this fact, thus qualified, cannot 
be too strongly, or too often urged upon the public mind, for 
the whole question is supposed by many to be summed 
up and disposed of when it is said that New- York has 
abolished slavery, and cannot, therefore, admit that it is a 
crime for one man to steal another. New- York, as before 
remarked, has abolished slavery as between her own citizens, 
but she has not abolished slavery as between her own citi- 
zens and government and the citizens and government of 
slaveholding states, and as between the citizens of slavehold- 
ing states themselves ; and this she can never do as long as 
she recognizes the Constitution of the United States as the 
paramount law of the land. It violates the whole theory of 
our gov^ernment for any one state to pass laws in any way 
interfering with her own relations to her sister states, or their 
relations to each other. To the Congress of the United States 
has the Constitution assigned this duty. To it is delegated the 
power of regulating the commerce and intercourse between 
the different states of the Union. The Constitution itself 
secures to citizens of all the states the rights of citizens in 
each state, and provides, as we have seen, for the arrest and 
delivery of criminals in one state, charged with crimes com- 
mitted in the others. To tlie federal government, in a word, 
belongs all matters between the citizens of different states, 
and between the governments of the different states. The 
doctrine of its exclusive control over these matters has been 
carried so far, as to make it questionable whether a slavehold- 
ing state has the right to prevent the introduction of slaves 
into her territory from other states. The states, on the other 
hand, regulate exclusively the relations of their own citizens. 



71' 

On this subject their power is supreme, except so far as its ex- 
ercise interferes with some federal obligation which they as- 
sumed in derogation of their sovereignty at the time of their 
entrance into the Union. The construction which your 
Excellency gives to the Constitution would utterly violate 
this whole theory of the appropriate spheres and power of 
the different portions of our complex system of government. 
You claim for New- York the right of judging what shall 
be a crime, not alone as between citizens of the state of 
New- York, which she has the manifest right to do, but what 
shall constitute a crime in Virginia between her government 
and the citizens of other states, and even as between her 
government and her own citizens. You thus not only claim 
that she shall disregard this division of powers which leaves 
the Constitution and Congress the regulation of the inter- 
course between the citizens and governments of the different 
states, but you insist that she shall, as far as she can, do 
what Congress itself has no power to do ! It matters 
not, as far as the principle is concerned, that New- York 
does not enter Virginia and snatch the arrested felon 
from the hands of her judicial authorities. If your Excel- 
lency is correct, she would have the right to do so, and in 
the case of her own citizens she would be under the highest 
possible obligation to do it, that of the protection which a 
government owes to its citizens; and I am satisfied she 
would not be deterred from its performance, if such were the 
case,byanymotives of expediency, or apprehension of danger. 
Had Alexander McLeod never have been arrested. Great 
Britain would not have surrendered him to be tried for an 
offence for which he ceased to be individually responsible 
when his government assumed the responsibility of it. 
McLeod is arrested, and the same government demands 
his liberation upon the same ground upon which she would 
have refused his surrender, and will doubtlessly declare war 
if he is not discharged ! The protection which New- York 
owes to her citizens, her dignity and sovereignty as an inde- 
pend' - state, forbid, you say, that she should surrender her 



V3 

citizens to Virginia to be tried criminally for an act that is 
" innocent and meritorious'^ by her own laws. If this indi- 
vidual was arrested in Virginia for such an offence, New- 
York, by the same principle, should feel herself imperatively 
called upon to demand his surrender at the hands of the 
government of Virginia, and, if you are right, would be 
fully authorized, had she the power, to declare war, in the event 
of a refusal to give him up. What a figure she would cut 
at the bar of nations for declaring war against a government 
for punishing a criminal who had violated the laws of 
its territory, without assuming the act as her own, I will 
not attempt to picture. But this is not the worst con- 
sequence of your doctrines. You permit New- York to 
interfere between the citizens of Virginia and their own 
government ; for, as I have before said, and as your Excel- 
lency must be aware, the principle of the law of nations on 
the subject of the surrender of fugitive criminals, applies even 
with more force to the citizens of the government surren- 
dering, than to the citizens of the government demanding ;* 
and if, therefore, you cannot surrender a citizen of New- 
York under this provision, much less can you surrender a 
citizen of Virginia. 1 repeat, then, you would have New- York 
interferebetween the citizens of Virginia and their own govern- 
ment. You would have her pass the common line of division 
between them, violate her territory, outrage iier sovereignty, 
paralyze her laws, and arrest the execution of her criminal jus- 
tice. It is true, as in the case of the citizens of New- York, 
you do not literally enter her territory with an armed force 
and do all this, but it is done virtually, and quite as effec- 
tually, when, in answer to a requisition of her Governor, 
under her constitutional provision, for the surrender of one 
of the citizens of the state who has committed a criminal 
offence against her laws, you reply that this crime is no 
crime by the laws of New- York, the criminal committing it 
no criminal, and that, therefore, you cannot surrender him 



Vide4John3.Ch. Rep. 113. 



73 

for punishment even by tribunals of his own state. It is 
nothing that Virginia tells you that the offence is a crime by 
her own laws, and that it was committed within her own 
jurisdiction ; that the person committing it is one of her citi- 
zens, and therefore amenable to her jurisdiction ; that New- 
York cannot interfere with her domestic Constitution ; that 
slavery has been recognized, and property in slaves pro- 
tected by the Constitution of the United States ; and that 
states are forbidden to interfere with it, and that to promote 
tranquillity and good feeling between them, provision has 
been made by the same Constitution for the delivery of cri- 
minals from one to another, to be there tried by the tribunals 
having jurisdiction of the crime. 

The obligations imposed upon the states, by the 7th section 
of the 4th article. Governor Gilmer tells you have been sus- 
tained by the highest judicial tribunals of New- York ; 
but this, you say, does not affect the question of delivering a 
fugitive from justice charged with stealing a slave. The 
reason, you say, is to be found in the difference between the 
two provisions. " In the first of these cases, the laws of the 
" state concerning slavery are recognized by the Constitution : 
" ' No person held to service, or labor, in one state, under 
*' ' the laws thereof, shall be discharged from such service, &,c.' 
*' The other constitutional provision makes no reference to 
" the laws of the state from which the fugitive flees, but leaves 
"its term open to construction upon general principles, like 
♦' any other form of expression in the instrument. There are 
" good reasons for the difference in the language of these pro- 
" visions. The section in regard to fugitive slaves, relates 
" to a civil right of a citizen, for the establishment of which 
" the courts of the state where the person claimed as property 
" may be found are opened to him. In the other case, a p?^6- 
" lie wrong- is alleged to have been committed, and the free 
" citizen of a state is demanded, that he may be tried and 
" punished in the jurisdiction of another state, and under 
«' its laws. They are then as different as the assertion of a 
10 



74 

" private right and the punishment of a public offence."" 
" The provision concerning fugitive slaves can in no case 
" affect the right of any citizen of this stale ; but the clause 
" concerning fugitives from justice embraces citizens of this 
" state, whose liberty is dear to her, and guaranteed by her 
" Constitution." 

Your excellency will permit me, with all due respect, to 
say that I do not apprehend the force of this language. In 
the first of these cases, you say, the laws concerning slavery 
are recognized by the Constitution, and then you quote the 
language of the Constitution — " no person held to service, or 
"labor, in one state, under the laws thereof" — as proof of it. 
Now, sir, will you allow me to ask you if you do not perceive 
that this language is purely descriptive, and that the 
prohibition could not have been made in any other 
words? Suppose it had said, "no person held to service or 
" labor in one state," and omitted " under the laws thereof," 
would not these words have followed as a matter of course, 
and been supplied in the mind of every one who read it, and 
would not any court in the world have decided that they were 
meant ? Certainly, because no one ever heard of a man held 
to service, or labor, in one state by the laws of another state. 
"Held to service or labor" is but another expression for slave, 
made use of in some of the State Constitutions and in many 
acts of Congress. Suppose it had said, " no slave in one state, 
escaping into another, should be liberated by the laws of the 
Jast. Would not this naturally have carried with it an equally 
obvious reference to the laws of the state whence the slave 
came 'I Suppose it had omitted all words after slave, and sim- 
ply said, " no slave escaping shall be liberated by the laws 
" of the state to which he flees." Even then the clause 
must have been confined in its execution to the slaves of the 
slaveholding states of the Union, and consequently have been 
supposed to import a referenceto the laws of such states alone, 
or else a clause of her own Constitution would make it ob- 



Vide Appendix. 



75 

ligatory upon New-York to surrender the runaway slaves of 
all the powers in the world that have such property. The 
phrase then, I contend, is purely descriptive of the condition 
which makes a man a slave, and was absolutely neces- 
sary to enable them to frame the prohibition, which it was 
the object of the clause to establish. It makes no further 
reference then as recognizant of the laws of the state from 
wlience the fugitive flees, than the other clause, which re- 
quires the delivery of tlie fugitive from justice charged with 
crime in the state from which he flees. This, necessarily, 
and in as pregnant a manner as possible, imports a reference 
to the laws of the state where the crime is committed ; and 
if the object had been to confine it to such oflences as are 
recognized by the common law of England, or the civilized 
world, or New- York herself, the framers of the Constitution 
would have made known their intention, as before re- 
marked, and as Governor Gilmer properly says, by adding 
words to this effect in a proper place in the sentence. 
The only important thing, as Chief Justice Savage says, in 
the case of Clarke, is the " charg-ing,^' and it is no more 
to be supposed that a man will be charged with what is not 
an offence by the laws of the state where the charge is made, 
than it is likely that it would to be considered before the 
charge was made, whether the offence was one by the laws 
of England or the civilized world. 

Again, your Excellency says, the section in regard to 
fugitive slaves " relates to a civil right of a citizen. In 
" the other case a public wrong is committed, and the free citi- 
" zen of a state is'demanded that he maybe tried and punished 
" in the jurisdiction of another state, and under its laws." 
Now, as you are, at this point of your argument, stating 
matters of principle, and not describing the case between 
you and Governor Gilmer, why did you not say that the 
one section related to a civil right of a citizen, and that in 
the other, public wrong in a neighboring state is alleged to 
have been committed, and the free citizen of such state is 
demanded that he maybe tried and punished in the jurisdic- 



76 

tioii of his own state, and under its laws. This is the true 
difference between the two sections when stating; the case as 
strongly for Virginia as the principles involved admit ; and as 
nothing is ever gained by imperfectly representing the posi- 
tion of an adversary in argument, I wonder that your Excel- 
lency did not so announce it. That it does not happen to repre - 
sent the exact circumstances of the present case between you 
and this state, is owing simply to the fact that the criminal de- 
manded is a citizen of New- York ; but as you have taken 
the law of nations as your guide in the construction of the 
Constitution, and insist upon its being so considered by Vir- 
ginia, and as the law of nations applies more rigorously and 
strongly to the delivery of your own citizens than those of 
any other power that may have sought refuge within your 
territories, this is a fair statement now of the principle in- 
volved in the two sections, and will be of the facts of the next 
case, when, as no doubt, you will soon be applied to for a 
citizen of Virginia, who has fled to New- York for protection 
against his crime. The difference, then, between the sections 
is, that one relates to the civil right of a citizen of Virginia, for 
the vindication of which the tribunals of New- York are 
opened to him, and the other to a public wrong to the state of 
Virginia, alleged to have been committed ; and the indivi- 
dual committing it a citizen of Virginia, is demanded, that he 
may be tried and punished by the courts of his own state, 
according to the laws he has offended. Can any possible 
objection be imagined to this, unless, indeed, your Excel- 
lency is altogether opposed to the surrender of criminals, and 
think it, in every case, inconsistent with the dignity and 
sovereignty of a commonwealth. As it is a citizen of Vir- 
ginia, it cannot " embrace" any more than the clause concern- 
ing runaway slaves, " citizens of this state whose liberty is dear 
" to her, and guaranteed to her by her Constitution," and as 
this seems to be the only reason why you cannot surrender the 
" meritorious" and " innocent" men, whom the executive of 
Virginia has demanded of you in the present case, it is to be 
presumed there would be none other. But if you would sur- 



77 

render a citizen of Virginia, as before intimated, a fortiori, 
must you surrender a citizen of New- York, because publi- 
cists tell us the law of nations makes no difference as to the 
obligation to surrender fugitive criminals between citizens of 
one's own state, and citizens of a foreign government, 
but rather applies with more force and cogency to the 
former than the latter.* Now, unless your Excellency de- 
signs to avail yourself of the principles of this code one 
moment, and to reject them the next — insist upon them when 
it suits your views, and to disclaim when it conflicts with 
them — they would seem to be decisive of this question at this 
exact point. 

But, to go back again to these sections, upon what princi- 
ple, let me ask you, (and that it must be upon some principle 
I suppose you will admit,) do you suppose the Constitution 
to rest the provision respecting the arrest and delivery of 
fugitive slaves ? Can it be upon other than the principle that 
one man can be the property of another ? You say yourself, 
" the laws of the states concerning slavery are recognized by 
" this provision ;" and permit me to say, that you have here 
inadvertently conceded the whole question, as I shall pre- 
sently show. Slavery, then, is recognized, not only in the 
states where it exists, but the laws of such state, and among 
them those which consecrate this principle, and give the 
master the right to the slave, as his property, are to be bind- 
ing all over the Union, to be respected all over the Union, 
and enforced by the state tribunals all over the Union ; and 
thus the principle that one man can be the property of ano- 
ther, and consequently that one man can steal another, is re- 
cognized, by virtue of the Constitution, all over the Union, 
goes wherever it does, and the state governments, whether 
of free states, are for ever rendered incapable of dissolving 
the relations which this principle has given birth to. It is, 
then, clearly sanctioned by the Constitution : and New- York, 



• Vide 4 J. C. R. 109. 



78 

as one of the parties who adopted this Constitution for their 
government sanctioned it, and yet you refuse to deliver the 
criminals Virginia demands of you, because neither New- 
York or the Constitution recognizes any such principle. 
You cannot surrender a citizen of New-York, to be tried in 
Virginia, for having committed a crime there, which the 
Constitution of the United States must recognize as theft, 
since it recognizes property in slaves, and by your own ad- 
mission, " the laws of the states concerning them," because 
you say this Constitution nowhere admits this principle ; and 
yet you will surrender up the fugitive slave to his master, 
under the same Constitution, when it can be done upon no 
earthly principle than this very one which you say the Con- 
stitution repudiates. You say the two things are as different 
" as the assertion of a private right, and the punishment of 
" a public offence." Really, sir, 1 do not perceive the 
force of this distinction. Private rights and public offences 
are generally very intimately associated. The private 
right here asserted is the private right of a citizen of 
Virginia, not exercised, because it can in no case affect 
the rights of any citizen of this state, but because the Con- 
stitution of the United States recognizes it, and compels you 
to acknowledge it, and your tribunals to respect it. The 
public wrong, in the same way, is a public wrong against 
the state of Virginia, arising from the violation of this very 
private right of the citizen which the Constitution compels 
you to respect in the other case ; and the Constitution re- 
quires you to surrender up (he author of this public wrong 
and private injustice ; and your Excellency cannot refuse, I 
apprehend, more than in the other case, because he happens 
to be a citizen " of the state of New- York, whose liberty is 
" dear to her, and is guaranteed by the Constitution ;" un- 
less, indeed, you deem the exemption of citizens of New- 
York from trials for their offences against the laws 
of their sister states of paramount importance to their 
most sacred constitutional obligations, a regard for jus- 
tice, and the peace and perpetuity of the Union. I 



79 

cannot believe that this doctrine can ever be sanctioned by 
the people of New- York. It is too selfish to be sound. It 
is utterly at war with the genius of our institutions, and the 
spirit which led us, shoulder to shoulder, through the dark 
days of our revolution. It is utterly at war with the spirit 
with which our forefathers met in the council chamber, and 
from the genial influence of which our Constitution sprung 
into life. It is inimical to the best feelings of the human heart, 
to the best interests of the confederacy, and to the friendship 
and harmony of its members. It will make enemies out of 
brothers, and point the dagger where the right arm of friend- 
ship should be extended. It will weaken the binding influences 
of our government, and strengthen those which tend to draw 
us asunder, until, at no distant day, the cable which now 
connects us shall part like threads of flax, and the different 
orbs of our system, loosened from restraint, shoot madly 
from their spheres, and be extinguished, or ever after- 
wards breathe but hostile influences. No act of any state 
government, or political party, has ever, I regret to say, in- 
dicated so uufraternal a spirit, or one so utterly repugnant 
to the character of our Constitution, as this simple refusal 
on the part of your Excellency to surrender a criminal 
charged with violating laws of vital importance to the safety 
and welfare of one of the states, because he happens to have 
been born, or to have become, by twelve months' residence, 
a citizen of New-York. I will not now speak of the nature 
or extent of the protection which a government owes to its 
citizens. Nor will I consider the propriety of a state's inter- 
posing its sovereignty for the protection of crime, in disre- 
gard even of the common courtesy and common justice which 
hostile nations practice towards each other, and which 
self-respect, and a lofty sense of honor, would alone seem 
to dictate. I speak now alone of the feeling it evinces on 
the part of the people of this state to their brothers of the 
confederacy. One would have looked, I confess, for a differ- 
ent one. So far from bringing such a consideration to 
weaken, or to limit a constitutional obligation, designed 



80 

for the protection of the rights of your fellow citizens of 
your sister state, one would have thought that you would 
have been more rigorous in the case of one of your own 
citizens than in that of one of the latter. "While an impulse of 
humanity, or chivalry, would make you naturally reluctant 
to surrender up a citizen of another government who had 
sought refuge in your territory, a feeling of magnanimity 
or delicacy would seem to prompt the delivery of a citizen 
of New-York, lest a refusal to give him up might be attributed 
to a feeling of greater regard for him than for the citizen of 
the other state. 

Singular, indeed, would be the position of the black man 
of the South, under the Constitution and laws of the United 
States, if your views are correct. You make him a slave 
one moment, even within the jurisdiction of New- York, and 
a free man the next, even in the state where he lives in 
bondage — a slave as between his master and the government 
and citizens of the neighboring states, and a free man as be- 
tween the government of Virginia and the government and 
citizens of New- York, and even a free man as between the 
citizens of Virginia and their own government. Let him 
run where he pleases he carries his bonds with him, and his 
master can follow him, as before remarked, and take him as 
his property. Let him be stolen, however, by a citizen of 
New-York; or even a citizen of Virginia, with the unhallowed 
purpose of trafficking in his flesh in some southern mart, 
and your Excellency emancipates him upon the spot, not, 
indeed, to give him freedom, however, but that you may 
throw the egis of your state sovereignty over the person of 
the felon who has stolen him from his home, and thus, per- 
haps, torn him from his only friend to sell him among 
strangers. He is a slave as between his master and himself, 
a slave as between his master and the federal government, 
and yet not a slave, because you say the Constitution does 
not recognize the stealing of him as a crime — a slave as be- 
tween his master and the government of the other states, 
and between his government and the governments of the 



81 

cyther states, and yet not a slave, because the governors of 
the other states refuse to surrender the criminal who has 
stolen him upon the ground that he is not property, and can- 
not, therefore, be stolen. What sort of being is he who is 
thus free, and in bondage, at the same moment ; into whose 
nostrils passes in and out the breath of liberty a hundred 
times in an hour — whose shackles fall and close around 
him again at will at the capricious wave of the wand of 
executive power? 

Now that I have noticed your doctrines, and stated the ob- 
jections to them, let me briefly review the grounds of your 
opposition to the views so ably and eloquently presented by 
the late Executive of Virginia. What is it that he asks at 
your hands ? Why, that an individual charged with the 
commission of an offence against the laws of Virginia, a 
sovereign state, should be surrendered to be tried where the 
offence was committed, and by the tribunals having jurisdic- 
tion of the crime. Is there any thing very extraordinary in 
this ? Is it inequitable, unusual, in violation of law, either do- 
mestic or national, contrary to the established usages of states, 
as observed intheir own territories,orin their intercourse with 
each other; or is it repugnant to the politieul principles which 
have ever been the guiding lights of the states of this Union 1 
With due respect I think not; and yet your Excellency is 
pleased to observe to Governor Gilmer, that it was not the 
least among the subjects of " complaint by our ancestors 
" against the British king, that he had combined with others 
" to subject them to a jurisdiction foreign to their own con- 
" stitutions, and not acknowledged by their laws. It is not 
" to be supposed, you goon to say, that those who have de- 
" livered themselves by force from this intolerable oppres- 
" sion, would perpetuate it in another form." Now, sir, / 
have strangely misread the history of our revolution, " if it 
" was not the least among the subjects of complaint by our 
" ancestors against the British king," that he was doing pre- 
cisely what Virginia complains your Excellency is doing in 
the present case, removing men charged with the commis- 
11 



sion of offences from the place where they were committed, 
and the courts which alone have jurisdiction of them, 
to he tried by others having no jurisdiction of the offences, 
and strangers to the laws under which they were com- 
mitted. The colonies asked that the offenders should 
be tried under colonial laws, and by colonial courts, where 
the crime was committed, and not remitted to English tri- 
bunals which were " unknown to their Constitution, and 
•' unacknowledged by their laws." Virginia asks that Johnson, 
Gansey and Smith, sliould be tried in her courts, and by her 
laws, where the olfence was committed, and not remitted to the 
tribunals of another state, unknown to her Constitution, and 
unacknowledged by her laws ! There is only this difference 
between the treatment of the states by the British king, and 
the treatment of Virginia by your Excellency, that the for- 
mer insisted upon trying American criminals under English 
laws, whereas your Excellency insists that Virginia crimi- 
nals shall not be tried at all. In a word, sir, with all due 
deference, I humbly appreiiend there is not the slightest 
imnginable resemblance between the cases of New-York 
and Virginia and that of the colonies and the mother country. 
According to your views of the matter, New-York claims that 
her citizens shall be exempted from all responsibility for the 
violation of the laws of Virginia, committed even after entering 
upon her territory and voluntarily subjecting themselves to 
her jurisdiction. The colonies only asked that their citizens 
should be tried by their own tribunals which had jurisdic- 
tion of the crime, and were charged with the execution of 
their laws. They dared not have asked what your Excel- 
lency claims for these men, entire exemption from responsi- 
bility ; because the laws of Great Britain, which were alleged 
to have been violated, were the laws of the colonies, in the 
same way as the federal Constitution is the law of Virginia 
and New-York. The colonies, in a word, admitted that the 
offence charged were crimes, but contended that the offenders 
should be tried by their own courts. New- York contends 
that the offences committed are not crimes at all, even though 



83 

so considered by the authorities where they were committed ; 
and thus in fact tries them by her own tribunals. The citi- 
zens of the colonies were to be taken from the vicinage in 
which the crime was committed, and whence the jury is to 
come, by the EngHsh laws. Gansey, Smith and Johnson, 
are demanded that they may be brought back to the 
vicinage. The colonists were at home under their own 
laws. The citizens of New- York, in another state, under 
other laws. 

Virginia, then, asks nothing, as your Excellency seems to 
think, which is incompatible with the principles of our revo- 
lution, or those of our declaration of independence. She, in 
truth, but asserts a principle of natural law, natural justice, 
and civil policy, which, I venture to say, will be found in the 
government of every country in the world pretending to the 
least civilization or system, from the earliest period up to the 
present time ; and this is, that offences are to be punished in 
the place where they are committed. Although, in the 
language of a celebrated French writer, it was not in the 
genius of the Roman legislators voluntarily to put limits to 
their power ; although, under these conquerors of the world, 
the Roman law was the law of the universe, we yet 
find laws in their code which consecrate this principle. 
Crimes, says the Emperor Theodosius, cannot be punished 
except in the place where they have been committed. 
Oportet enim illic criminum judicia agitari ubi facimus 
dicatur admissum. " In considering," Merlin goes on 
to remark, " this question which we have discussed, both 
" as it relates to civil and criminal laws, Bodin in his Re- 
" public, Charondas in his Pandects of French law, Mornac 
" in his Commentaries, decide unanimously that a tribunal 
" cannot take cognizance of matters of facts and acts, or acts 
" and things occurring between strangers, and in a strange 
" country. The most renowned ultramontane doctors have 
" also decided, that in like cases the tribunals of their own 
" country have followed the same doctrines. '• Fatetibur 
" enim in hacspecie,"says Covarruvias, " ad locum delicti re- 



84 

" mittendum fore. Farinocius, Balde, Alexandre et Julius 
" Clarus, profess the same doctrine."* 

Here, then, we find this principle consecrated and in force 
throughout the whole extent of the Roman empire, afterwards 
adopted, along with the civillaw in France,prevailini(throus:h^ 
out Italy, and many other countries of Europe, and no doubt 
the basis of the custom which prevails in Switzerland. I 
need not remark that it is one of the earliest principles of 
the English Constitution and laws, and I suppose there is 
not a state in this Union which has not incorporated it into 
her code and government. The principle is based in part 
upon the obvious impossibility of the tribunals of one coun- 
try judging of the violation of the municipal laws of others. 
It leads, as in the Roman empire, and more recently in that 
of Great Britain, and in the different states of this confede- 
racy, to the regulations which exist for the remission of the 
criminal, wherever arrested, to the authorities of the place 
where the crime was committed ; and as between inde- 
pendent nations, and nations leagued, like the Swiss cantons 
and the United Provinces, it leads to the custom of surrender, 
or extradition of fugitive criminals. 

So far it seems to be consistent with some of the obli- 
gations of nations, and does not appear to be irreconci- 
lable with justice. Is it incompatible with the sovereignty 
of a state, or with the protection due from it to its citi- 
zens ? Your Excellency thinks, and this seems to be 
your main objection to a compliance with the requisition of 
the Executive of Virginia, that in the present case, as between 
the different states of the Union, it would be wholly subver- 
sive of the one, and utterly in violation of every just princi- 
ple of the other. It would " impair the sovereignty of the 
" states, and deprive their citizens of the protection of their 
"own laws and tribunals." The question " seems to me (your 
" Excellency) to involve not only the essential principles of 
" civil liberty, and the federal relations of the states, but also 



Merlin, Tit. Souyer. 



85 

" their sovereign and reserved rights. It is the old question 
'* that has agitated the country since the adoption of the 
*• Constitution, concerning what has been surrendered by 
" the states, and what has been retained. Virginia contends 
»' for a construction of the Constitution which is incompati- 
" ble with the true dignity and sovereignty of the states." 
This is your language, gathered from various parts of your 
letter, and really, with all due respect, I cannot but think it 
evinces a misapprehension of the whole matter of sove- 
reignty of states, and of the protection due by governments 
to their own citizens. The principles on these subjects, hap- 
pily for nations and Virginia, are clearly understood and laid 
down by publicists, and your Excellency cannot, and will not 
be permitted to extend them beyond their long established li- 
mits. The protection which a government owes to its citizens, 
one would naturally suppose, would be that which was neces- 
sary to enable them to perform their duties,or to enjoy uninter- 
ruptedly life, liberty, and the pursuit of happiness. In the sec- 
tion in which Vattel treats of the duty of the sotvereign, or 
government, to protect its citizens, he speaks of it as consist- 
ing in their protection from oppression. " Whoever maltreats 
*' a citizen, undoubtedly offends the state, whose duty it is to 
" protect the citizen. The sovereign of the latter should 
" avenge the injury, &.c., otherwise he will not obtain the 
'^ great end of civil association, which is security."* In 
another chapter on the subject of the jurisdiction of a 
government over its own territory, he says, that " the sove- 
" reign," or government, " should never interfere in cases 
" of its citizens in foreign countries, and accord them its 
" protection, except where there is a denial of justice, or some 
" palpable and evident injustice, or a manifest violation of 
" rules and forms, or, in a word, some obvious distinction 
" made to the prejudice of its citizens, or strangers in gene- 
" ral." Gathering our ideas of the duty of protection from 



Vatiel, Droit Des Gens. Vide Liv. 11, c. vi. § 71., and Id. ch. vii. 333. 84. 



86 

these extracts, let me ask your Excellency if you find any 
thing in the demands of the Executive of Virginia which 
comes in conflict with it in any way? Hardly, unless you 
consider a nation " maltreats" a man whom she wishes to 
punish for a violation of her laws, or unless you consider 
such a desire to involve some " palpable and evident injus- 
tice." This, however much disposed as yon may be, you 
will not be permitted to affirm with the extracts of Vattel 
and Merlin just spread before your eyes, announcing the 
solemn obligations of strangers to respect the laws of the 
government upon whose soil they land, and establishing the 
right of such governments to punish them if they in- 
fract them. The requisition, then, of the Governor of Vir- 
ginia, violates no part of the principle of protection due 
citizens by their government. This, however, but half ex- 
presses the truth. 

The Governor of Virginia but enforces a right which his 
state enjoys by the law of nations, the exercise of which she 
owes to herself, and is due to the protection which she owes 
to her citizens ; and your Excellency violates one of the most 
solemn obligations imposed upon a state by the law of nations, 
when you refuse to surrender the criminals. " But, on the 
" other hand," says Vattel, " the nation or sovereign ought 
" not to suffer its citizens to do an injury to the subjects of 
" another government, much less permit them to offend 
"the state itself; and this not only because no sovereign should 
'•' allow those who are under its power to violate the pre- 
" cepts of natural law which interdicts every species of in- 
" jury, but because nations should mutually respect each 
" other, abstain from all offence, all wrong, all injury, and in a 
" word, from every thing which can do hurt to others. If a 
" sovereign who is able to keep his subjects within the rules 
" of justice and peace, permits them to maltreat a foreign 
" nation, either in its public capacity, or in the person of its 
" citizens, he does do a less injury to them than if he mal- 
" treated them himself. In a word, the safety itself of the state, 
" and that of society in general, demands that care and attcii- 



87 

" tion from every sovereign. If you leave your subjects 
" to act as they please against foreign nations, they will leave 
" their subjects to act in the same way towards you ; and in the 
" place of that fraternal society which nature has established. 
" between all men, we shall iiave a frightfnl scene of nations 
" of brigands pillaging and robbing each other." This is 
the noble language of justice, Christianity and law. It comes 
from God, and the principles it inculcates are innate in the 
bosom of every man, and have been farther consecrated by 
the universal approbation of the civilized world. They are 
as essential to the harmony of nations as gravitation to that 
of the planetary system. You cannot deny them, nor can 
you elude their force. And you well recollect, too, that they 
come from that code of laws which the greater part of your 
argument goes to prove it was the object of the provision 
in question to embody in the Constitution ; and from them, 
or rather as a consequence of them, springs, says the writer 
just quoted, the obligation to punish the criminal yourself 
when he escapes into your territories, or to deliver him over 
to the oifended state.* 

Here, then, it would seem, that there are positive and fixed 
principles which make it your solemn duty, independently of 
the constitutional obligation to surrender up the men de- 
manded by Virginia. They went into that state under the 
implied condition imposed by the law of nations, that they 
would respect her municipal laws and social institutions. 
Without this understanding they would not have been per- 
mitted to enter. Virginia had a right to suppose, too, 1 hat New- 
York guaranteed this contract of her citizens, for it is her duty, 
we have just seen, by the same law of nations, to take care that 
her citizens do no injury to other states, or to their subjects. In 
violation, however, of this implied compact, against every 
principle of justice, and propriety, and kind feeling, and in 
disregard of their implied promise to their own state, to for- 



Vide Vattel, Liv. 1, c. xiii § 169. Vattel, Liv. 11 , c. vi. § 72. 326. Id. § 76. 



bear from acts of aggression on other states, they unc(ertake to 
rob a citizen of Virginia of his property, and thus are guilty 
of committing a flagrant assault upon iier laws and institu- 
tions. Had they have been apprehended in. Virojinia, Vir- 
ginia would have punished them, and your Excellency would 
not have dreamed of remonstrating against the act. They 
escape, however, and Virginia might have safely appealed, 
one would have supposed, to the friendship of her sister 
state to aid her in carrying out the same principles. She 
would find it difficult to imagine any possible reason why a 
prond state, who has always felt a stain on her honor like a 
wound, should desire to make her territory a refuge for cri- 
minals, even though they sprung originally from her own 
bosom. She could not but believe that she would spurn the 
wretches from her presence, and bid them seek some other 
shelter for their crimes. 

Is there any thing in this principle, let us now inquire, which 
conflicts, in the present case, with justice, or the proper rights 
and privileges of a citizen. " As soo-n," remarks the eloquent 
publicist whose writings I have had occasion so often to quote, 
" as a man has touched the soil of a foreign power, at the very 
" fi.rst step he takes, he has sworn to respect the laws and insti- 
" tutions established among those who inhabit it. Upon this 
" condition alone has the permission to enter it been given 
him."* This doctrine is also laid down with great force and 
clearness by Vattel. " The sovereign," he says, " is supposed 
" not to give access to a stranger, but upon the tacit condition 
" that he will submit himself to the laws. In virtue of this sub- 
" mission, strangers who commit offences ought to be punished 
" according to the laws of the country. The end of punish- 
" ments is to cause the law to be respected, and to maintain 



• " Des qu'un homme'a louche le solde I'empire etranger, des le premier pas qu'il 
a fait il a jure de respecter leslois el I'ordreetabliparmiceusquirhabitent. C'nest 
que a cutte condition que I'entree lai a ete ouverte." Merlin, Tit. Souver. § v. 
H. iv. 



89 

" order and public security."* If these are principles of the 
law of nations, founded as they are in reason and justice, 
what possible objection can your Excellency urge to their 
application to the case between yon and Virginia ? Vir- 
ginia asks nothing more. She only requires that the citizen of 
New- York shall pay the penalty of his violated oath to respect 
her laws and institutions. She only requires that the only 
condition on which he has been permitted to enter her terri- 
tory should be faithfully kept. It is a condition imperatively 
required by regard for the safety of her citizens, the perma- 
nency of her institutions, and the preservation of her sove- 
reignty within her own limits. It is a principle which she 
is willing to observe in her intercourse with her sister states ; 
of universal and binding force among nations from the At- 
lantic to the Ganges, and she has some difficulty in believing 
that her fellow citizens of New- York, with whom she has a 
common government and common Constitution, will alone, 
of all the world, refuse obedience to its precepts. Nations, 
like individuals, must respect the principles which have been 
established for the maintenance of justice and harmony be- 
tween them, and the former, no more than the latter, can long 
violate them with impunity. They cannot be made to bend 
to suit the views of every state that shall erroneously con- 
ceive its dignity or its sovereignty involved in the protection 
of the felon who violates the laws of those with whom 
it is leagued in peace Retribution comes sooner or later, 
either in the form of war, or the universal scorn and con- 
tempt of the civilized world. 

Now, to this principle there is no limitation whatever. 
The stranger must obey all the laws of the foreign 
country, whether abhorrent to the principles of jurisprudence 
which prevails in his own or not ; whether they recognize 
the principle of property in human beings, or repudiate it. 
In the same way to the obligation which the law of nations 



Vattel, Liv. 1, c. viii. § 343. 
12 



90 

imposes upon governments to take care that its citizens do no 
injury to those of other states, you can place no limit, nor 
annex any qualification. It is their duty to punish ihem, or 
hand them over for punishment to the offended nation, whe- 
ther they do violence to institutions which conflict with their 
own principles of law, or are in harmony with them. The 
only question, in the language of Vattel, is, whether there has 
been an injury inflicted. No laws of any other government 
than the one against whom the offence is committed, 
can have any possible influence upon the course to 
be pursued towards the individual ; for the object of punish- 
ment in all such cases, is to cause the laws of the state where 
the offence is committed to be respected, and the existence or 
non-e.Kistence of the san^e law in the state of the offender, 
cannot affect the importance of this object iii any way. 

If, now, then, 1 have properly explained the nature 
of the duty of protection which a government owes 
to its citizens, it does not forbid a compliance with the 
requisition of the Executive of Virginia. Your idea of 
it, you will permit me to remark, is one which, if fol- 
lowed out, may lead to fearful results. There are, for 
instance, a certain class of men whom all the civilized world 
have agreed to call pirates, and to punish as such, because 
they equally violate the laws of all nations. Suppose, how- 
ever, it be established as a principle that the citizens of no 
nation are bound to respect any laws unless they are to be 
found in the code of their own government, and that govern- 
ments are not bound to surrender up or punish any 
criminals save those who in violating the laws of other 
countries, violate their own as well. Nothing more 
would be necessary after this, than that states of Bar- 
bary should abolish their own laws about robbery, 
or stealing, or pass a law. legalizing these offences when 
committed against foreigners ; and acts of this kind would 
cease to be piracy, and these governments would be justified 
in refusing to deliver up their subjects to be punished for 
them. I need scarcely be told that the cannon of the com- 



91 

bined world would be the only answer to snch mockery of 
law and justice. Such, I apprehend, however, are, with all 
due respect, the legitimate consequences of your Excellency's 
doctrines. But whether they be so or not, however, there is 
one equallyfrightful to be contemplated which most assuredly 
will be. You will make New- York a point from which ex- 
peditions will be organized against the property and institu- 
tions ofthe southern states. Nothing is to prevent large masses 
of armed men assembling together within your territories, and 
that of Pennsylvania, and precipitating themselves upon the 
soil of Maryland and Yirginia, driving slaves away by night, 
and selling them farther south, or setting them at large, and 
giving them their freedom in open daylight, in defiance of 
the state laws, and in defiance of the Constitution of the 
United States. The felon will wrap himself up in the robes of 
the fanatic, and they will both rob with the words of God in 
their mouths, and your Excellency must take them alike 
into your arms on their return. Virginia and JMaryland 
will not be able to prevent it, for they are shorn of the 
powers of war. They must remain tranquil until the 
people can be assembled whose aggressions call for re- 
dress, and their consent obtained to amend the Consti- 
tution ; and in the meantime they will present the won- 
derful spectacle of nations at peace, while war, to all intents 
and purposes, is raging within their limits, and all along 
their borders. This is the result, the possible, the probable, 
nay, the inevitable result of your construction of the 
Constitution. How long will it stand, does your Excellency 
think, under such circumstances. Not longer than it will 
take the people of Virginia to rush to the capitol and tear down 
its pillars. Aery of vengeance will go forth like the shouting 
of a thousand winds, and in the stillness which follows you 
would soon hear the clash of resounding arms. God save 
us from such an end ! ! Your Excellency would lead us to it. 
But admitting that the protection which a state owes to its 
citizens does not forbid the surrender of the fugitives, the 
dignity and sovereignty of a state render it impossible you 



92 

say. The sovereignty of a state means nothing more, I appre- 
hend, than the power to do what it pleases within its own 
territory, and over its own citizens, as well as in its relation 
to other states. It has been found, however, advisable for 
the peace and interests of the world to subject such sove- 
reignty, or supreme power, to the control of certain prin- 
ciples of justice, and sovereign nations have agreed to do so. 
Among these principles are the two so often mentioned in 
the course of this letter, the one requiring the stranger who 
lands on a foreign soil to respect its laws, and the other making 
it the duty of governments to see that its citizens do no injury 
to others, and, as a consequence, requiring them in cases of 
such injury to punish themselves, or deliver them up to 
the offended nation to be punished. Erase these princi- 
ples from the law of nations, release New- York from 
their obligation, and Virginia then does make a demand, 
which, however just, might be deemed incompatible with 
the dignity and sovereignty of the former. But as long 
as they exist, and are binding upon her, it cannot be so 
considered. The proudest and haughtiest nations of Christen- 
dom have acknowledged their obligation and it has remained 
for your Excellency to discover that they are incompatible 
with the dignity and sovereignty of a member of the American 
confederacy. Yirginia asks nothing more than that they shall 
be enforced. She does not ask New- York to surrender to 
her tribunals the jurisdiction of crimes against her own laws, 
nor does she wish to make her statutes, law in the territory 
of New- York. She acknowledges the competency of the lat- 
ter to try her own citizens for their crimes against her own 
laws, but she denies her competency to judge of their 
offences against the laws of another state, committed in her 
territory, and claims, in accordance with a well established 
principle of jurisprudence, that they be remitted to the only 
tribunals that have jurisdiction of them, and are capable of 
pronouncing upon them ; those of the place where they are 
committed. Virginia does not ask the surrender of a sin- 
gle one of the sovereign powers of New-York. New- 



93 

York cannot judge of a crime committed in Virginia, 
because, from the very nature of things, her tribunals can 
have no jurisdiction of such offences. New-York cannot en- 
force astatuteof Virginia by her own judicial decrees, because 
it comes in conflict with fier own state laws. Virginia, there- 
fore, asks but that she be permitted to do what New-York can- 
not do even as a sovereign state, enforce her own laws, 
and punish her own criminals. Is there any thing in these 
demands or expectation at all incompatible with the most 
exalted sense of national dignity or sovereignty? Your 
Excellency says, "It is the old question that has agitated 
"the country since the adoption of the constitution, con- 
" corning what has been surrendered by the states, and what 
"retained." Now, I must be permitted to say, that the old 
question which has agitated the country since the adoption 
of this constitution isessentially a difterent one, in my opinion, 
from the present. That has been a question as to what was 
surrendered to the federal government by the states, and what 
retained by them. This relates to what has been surrendered 
by the states to each other in their state capacities, and what 
retained. The old question of which you speak led to the 
doctrines of states rights on the one hand, and consolidation 
and federalism on the other. The present question is alto- 
gether one of states rights, state rights against state rights, 
states against states, for on whatever banner victory perches, 
a state gains. The federal government has no interest what- 
ever in the matter. In an early part of your Excellency's ar- 
gument, if I mistake not, you contended that the object 
of this constitutional provision was to establish, in the inter- 
course of the states, the principles of the law of nations. 
The question, then, assuming these your Excellency's views 
of it, at this state of the argument, is only as to what are the 
principles of the law of nations touching the surrender of fugi- 
tives from justice, and what has been the practice of nations 
under them ; how far they have been affected by our constitu- 
tional compact ; whether they were adopted m all their ori- 
ginal extent, and thus embraced all offences, great or small, 



94 

crimes or misdemeanors, or whether the states have con- 
sented that they shall be, as they have been in the practice 
of some European nations, limited to those only of great 
atrocity, or deeply affecting the public safety. It is in this 
point of view, and this only, a question of surrender or 
retention — surrender of rights which they might have had 
as sovereign states, to the delivery of every criminal charged 
with the violation of their laws, or in the event of refusal to 
give them up, an assumption of responsibility for their crimes. 
But, sir, it is neither the one or the other ; it is neither the 
old question which has agitated the Union since the Consti- 
tution, nor is it a question touching the extent to which the 
laws of nations have been incorporated in the Constitution. 
It is only a question touching the meaning of certain 
words in it, and with the history of our country be- 
fore us, its condition at the time of the adoption of 
our government, recollecting the spirit of our institutions, 
the nature of our confederacy, the feelings of the dif- 
ferent states towards each other, and the explicitness 
of the language used, it is only surprising that there 
should be a question at all. It has perhaps escaped 
your Excellency's observation, that the Congress of 1793, 
together with that great man who presided over the 
Convention which adopted the Constitution, the first Presi- 
dent of the United States, entertained on this subject similar 
views to that of the Executive of Virginia. By the 4th sec- 
tion of the act of Congress of February 12, 1793, it is made 
criminal to obstruct the master or his agent in seizing his 
runaway slave, or to rescue him when arrested, or to harbor 
him after notice that he is a runaway slave ; and the person 
doing it is to be fined the sum of five hundred dollars, and 
the courts of the states are thrown open to him for the re- 
covery of the penalty. Washington, then, and the Con- 
gress of 1793, may certainly be deemed to have been of 
opinion that it was a crime under the Constitution to 
steal a slave in a slaveholding state, for they have made 
it criminal, even in a free state, to obstruct the master in his 



95 

efforts to recover him when runaway. This could have 
been done on no earthly principle than that the slave is the 
property of his master. Here, then, we find that it is an 
offence not only in a slaveholding state to interfere with the 
property of the master in his slave, but criminal even in 
New-York, on its own soil, and under the very shadow of 
its own tribunals ; and the latter are compelled to entertain 
actions for the recovery of the penalty from the citizen who 
commits the offence. This is perhaps not conclusive, nor 
would any thing, I am afraid, be likely to be so with your Ex- 
cellency short of positive legislation ; but as the deliberate 
opinion of men deeply imbued in the eloquent language 
of Governor Gilmer, with the spirit which established our 
independence and formed onr Union, one would suppose 
that it would have been calculated to make you pause and 
ponder well ere you went counter to it. In conclusion, your 
Excellency will pardon me if I venture to say that I think 
your whole views on the subject of slavery to be fundamen- 
tally wrong; and that when you go so far as to declare that the 
stealing of a slave in the United States, involves " no moral 
"giiilt,contravenesnoneof the principles of moral justice, and 
"is exempt from censure by the universal law of the civi- 
" lized world," — that you lay down a doctrine which cannot 
be sustained either by reasoning or reference to facts. That 
slavery is not repugnant to the law of nature was acknow- 
ledged by the Roman civilians,* has been asserted by distin- 
guished writers both of ancient and modern times, by Aristo- 
tle,t by Reynevalt of Spain, by Grotius§ of Holland, and by 
Paleyll of England. It existed among the chosen people of 
God, and our Saviour found it on earth and rebuked not men 
for it. That it is not repugnant to the law of nations, and 



* Inst. Lib. 1, Tit. V. Institutiones de Libertinis. 
t Aristot. Polit. Lib. 1, Cap. 5. 
t Reyneval Insiituciones Del Derecho Naturel. 
§ Grotias, B. 2, ch. v. n. 27. 
II Paley's Principles of Moral Philosophy, 156 



96 

that even the slave trade is not, has been solemnly decided 
by the admiralty courts of England and (his country ; 
in the cases of the Louis Dodron,* The Madravilles,t and 
the Antelope. i In these cases it was held that prisoners 
were slaves by the law of nations in Africa ; and as the 
slave trade was not prohibited by international law, its 
interdiction could not be enforced by the right of visita- 
tion and search. 1 will not deny that there are many able 
and distinguished writers, Rousseau, and Blackstone, and 
many others, who contend, on the other hand, that slavery 
is repugnant to the law of nature ; but speculations on 
this subject matter but little to the universal consent of the 
civilized world, for centuries past, to consider slaves as proper- 
ty, and to traffic in them as such. That England, and many 
other countries, have agreed to abolish slavery throughout 
some portion of their territories, and to prohibit the trade in 
them altogether, does not affect the principles upon the sub- 
ject which she herself once recognized, and which nothing 
short of an universal understanding among the rations of the 
earth can practically change. The stealing of a slave, then, 
even by the law of nations, if not nature, and consequently by 
the laws of the civilized states, does involve moral guilt, 
does contravene the principles of moral justice, and is not 
exempt from censure by the universal law of the civilized 
world. This, however, is a matter of the least possible im- 
portance in the present instance, where we have a Constitution, 
which, as I have just shown, acknowledges slavery, and en- 
forces its principles, and all of the signers to which were 
slaveholding states with the exception of one. But put- 
ting aside this Constitution, and admitting that stealing 
a slave is no crime by the law of nature or nations, 
but only by that of Virginia, and then leaving the question 
to be determined by the law of nations under such circum- 



* Adm. Rep. vol. 11, p. 238. 

t King's Bench, 1820. 

t Wheaton's Rep. vol. x. p. 66. 



97 

stances, your Excellency could not be sustained even then in 
your refusal to comply with the demands of Virginia. " But if 
" what is laid to the charge of the refugees," says Grotius, 
" be not a crime by the law of nature, or that of nations, it 
" must be determined by the civil law of the state they come 
" from, which is excellently shown by Eschylus in his Sup- 
" plices, where the King of Argos is introduced, thus ad- 
" dressing himself to the daughters of Danaus coming from 
" Egypt : 

' If Egypt's race should any claim pretend 
' O'er you, by any law or rule of theirs, 
' Because they say you are their nearest kinsman, 
' Who could withstand the plea, or argue ' t false 7 
'Why, you must prove by your own native laws 
' That they have had no such power. 

'3 SuppLicEs, p. 32.'" 

In no possible aspect, then, in which I can view this ques- 
tion, can I find any good reason for the course your Excel- 
lency has thought proper to pursue in relation to it. Against 
the doctrines contended for by Virginia, 1 Confess I am un- 
able to discover any sound objection. They contemplate no 
invasion of foreign jurisdiction, no attack upon foreign sove- 
reignty, no assault upon national dignity; they proceed upon 
a becoming confidence that all christian nations are interested 
in the suppression of crime, and will unite cordially in every 
measure calculated to secure its object. They presuppose a 
reliance among nations upon the good foithofeach other, which 
is peculiarly in harmony with the fraternal nature of our con- 
federacy, and the intimate associations and connections of the 
people of the different states. On the score of public policy 
they come fortified by the strongest considerations. " In the 
" whole extent of a political state there should be no place 
" independent of its laws. Their power should follow every 
" subject as the shadow follows the body. Sanctuaries and 
*' impunities differ only in degree, and as the effect of punish- 
" ments depends more on their certainty than their greatness, 
13 



98 

*' men are more strongly invited ta crimes by sanctnaries', 
" than they are deterred by punishment."* 

I may be permitted, before I conckide I hope, here to ex- 
press a sincere regret that party lines should have been per- 
ceptible this last winter in the position of the members of the 
legislature of this state in relation to this matter. Constitu- 
tional questions of grave moment like these should never be 
mingled up with party politics. I belong myself to that 
portion of the community which, in the political divi- 
sions of the country is termed Whig, and I have been 
as sincere in the condemnation of the measures of the 
late administration, and am as likely to be an ardent 
supporter of the one now in power, as the warmest 
of your friends, but heaven forbid I should be willing 
to sacrifice the Constitution, the peace of our country, 
the permanency of the Union, and the rights and feel- 
ings of millions of my fellow citizens, to any partisan 
purpose of sustaining your Excellency, or any other man, 
in all your official acts. I cannot believe either that such 
political devoti(^i could give you any pleasure, particu- 
larly when, as in the present case, it behooved you so much 
to have the guidance of all the impartial wisdom you could 
summon around you ; for whatever course the people of 
New- York may deem it proper ultimately to pursue in this 
matter, your responsibility is such to your countrymen and 
the world, as I confess 1 should think no conscientious man 
would covet. 

Your Excellency may think lightly of it. You may deem 
it matter of small moment to array large masses of men be- 
longing to the same government in hostile array to each 
other. You may deem it a matter of small moment to destroy 
the feelings of fraternal friendship which now bind the free 
citizens of two sovereign states of this confederacy, and sub- 
stitute in their place a spirit of deadly hostility ! You may 
deem it a matter of small moment to sweep away from men's 



t Bsccaha on Crimes. 



99 

minds the belief that this Union tends to their advantage, 
and place there a deeply settled conviction that it is fatal to 
their security ! You may deem it a matter of small moment to 
break in upon the feelings of veneration with which the 
people of this confederacy have hitherto looked upon the 
framers of our Constitution, by teaching (hem that that in- 
strument which they have given them for the protection of 
their property, is to be the means through which its ruin is to 
be accomplished ! You may deem it a matter of small 
moment to put arms into the hands of thousands of 
fanatics to wage war upon their peaceful and unoffending 
fellow citizens of the South ! You may deem it a matter of 
small moment to drive a sovereign state of this Union to the 
hard alternative of secession from it, or quiet acquiescence 
in a ruthless war upon her dearest rights and institutions. 
You may, perhaps, even deem it a matter of small moment 
to tear asunder this glorious Union, for the building up of 
which Providence itself has worked, and men will live in 
story long after every vestige of the present inhabitants of 
this country shall have been swept away. 

I will not venture to answer for you. One things 
however. I will make bold to say, and that is, that your 
countrymen and the world will not deem these things 
unimportant; and that they will follow an adherence to 
the doctrines which you have laid down, 1 religiously be- 
lieve. Dismemberment will come as assuredly as that disso- 
lution follows when the principle of life is gone. Let not 
the people of this country shut their eyes to the truth. Whe- 
ther there be many that are prepared to look upon the result 
with indifference I will not pretend to say. The hour, how- 
ever, that sees the golden link broken which binds this con- 
federacy together, will see the curtain rise upon a scene of 
horrors tiiat would make the blood of an American run cold 
to look upon. The people of England and France will hear 
it as it goes asunder, and could they see across the Atlantic, 
millions would be beheld making to its shores, and standing 
tiptoe, looking over to watch the effects of the awful catastrophe. 



100 

Sublime as seems the truth, and common as its expression, 
the hopes of the enlightened world, and the cause of free 
governments, is bound up with the fate of our republic. 
Europe may be said to lie disabled on her sick couch, as the 
knight in the romance, while the liberal press, like the fair 
Jewess, stands looking out and reporting the result of that 
battle going on here between the principle of freedom and its 
adversary, upon the result of which depends her death or 
restoration to political health and freedom. Let but the 
tide of battle go inauspiciously, and our republic go down ; 
and the cause of civil liberty, if not ruined for ever, will 
receive a shock from which it cannot recover for a hundred 
years. This is not an exaggeration ; nor is it strange. 
There are two great principles abroad in the world, 
and they cannot live together any more than life can 
take up its abode with death. One has long swept over 
this vast continent in all the majesty of unopposed power. 
It has crossed the Atlantic, and is now slowly but surely 
upheaving, and recasting the foundations of civil polity in 
the older world that lies beyond its waters. The friends of 
strong governments there are awake to the truth, and are 
watching its progress every hour. They know it comes 
westerly from our institutions, as light from the evening sky, 
and that with them alone can it die ! They know, too, that the 
fate of these institutions is wound up with that of the Union 
of the states ! Would that these truths had always been, 
and could ever hereafter be present, in all their solemn 
sublimity, to those minds on this side of the Atlantic who 
preside over the councils of our country. 

A VIRGINIAN, 

NOW A CITIZEN OF NEW-YORK. 



54 NT 









\ 



! Macr Ao,, 198f H V^ •t^% C>lv aO^ • I, '> V' V 



